LAST UPDATED: September 21, 2018
This Agreement is effective between you and PrivCo as of the date you accept this Agreement or execute an ordering document or online order with PrivCo specifying the Services to be provided by PrivCo, including any addenda and supplements thereto referencing this Agreement (an “Order Form”). If there is a conflict between this Agreement and the terms of any Order Form, then the terms of the Order Form will govern with respect to such conflict.
GENERAL TERMS AND CONDITIONS
1. API License.
(a) License Grant . Subject to the terms and conditions of this Agreement, PrivCo hereby grants Client a limited, non-exclusive, non-sublicensable and non-transferable license to access and use the application programming interface described on the Order Form (“API“) in the manner described in the technical documentation and materials related to the API provided to Client by PrivCo, as may be updated from time-to-time by PrivCo (“API Materials“) and to use the API Materials, in each case solely to access the database identified in the Order Form above and obtain data made available by PrivCo through the API (the ” Data“) for use by Client in accordance with this Agreement.
(b) License Restrictions . Client will not and will not allow any of Client’s directors, officers, employees, agents of contractors (collectively, “Personnel “) to: (i) reverse engineer, disassemble, decompile or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure or organization of the API or attempt to create a substitute or similar service through use of or access to the API; (ii) copy, rent, lease, sell, assign, sublicense, transfer, distribute or otherwise make available the API or any API Materials or any part of any of the foregoing, in any form; (iii) alter any part of the API or Data, except as expressly authorized under this Agreement; (iv) create derivative works of or otherwise modify the Data, API or any API Materials, or any part of any of the foregoing; (v) make any copies of the API or any API Materials, or any part of any of the foregoing, in any form; (vi) attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the API, including without limitation, any such mechanism used to restrict or control the functionality of any of the foregoing; (vii) use the API or the Data for any illegal, unauthorized or otherwise improper purpose, or in any manner that would violate this Agreement; (viii) remove any legal, copyright, trademark or other proprietary rights notices contained in or on the API or Data; or (ix) use the API in a manner that, as determined by PrivCo in its sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API Materials.
(c) Use Limitations. The Order Form and API Materials may include set limits on the number and frequency of API requests that Client can make. Client agrees to these limitations and will not attempt to circumvent them.
(d) Reservation of Rights . PrivCo does not grant Client any rights in or to the API or API Materials except as expressly set forth in Section 1(a). As between the parties, PrivCo owns and retains ownership of the Data, API and API Materials, including any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. Except as explicitly licensed under this Agreement, PrivCo reserves all other rights and licenses and retains ownership of the API, API Materials and the Data.
2. Other Rights and Obligations.
(a) Password. PrivCo will provide a key and/or unique certificates and identifiers to enable Client to use the API to access Data. Client is solely responsible for maintaining the confidentiality of such log-in accounts, passwords, and credentials and PrivCo will not be liable for any activities undertaken by anyone using Client’s log-in accounts, passwords or credentials. Client will immediately notify PrivCo of any unauthorized use of its log-in account, password or credentials or any other breach of security known to Client.
(b) Data Protection. Client will implement reasonable security measures to safeguard the Data and the API. These measures will include, at a minimum, restricting access to the Data, and the API and API Materials, to those employees of Client who have a need to access such Data and encryption or other secure form of protection of Data. Further, Client may not use Data to for the purposes of competing with PrivCo or creating a competitive service.
(c) Suspension of API Access. If Client breaches any of its obligation set forth in this Agreement, or fails to pay any amount under this Agreement when due, then, in addition to any other remedies available at law or in equity, PrivCo will have the right, in its sole discretion, to suspend, in whole or in part, Client’s access to the Data and the API if such breach or failure to pay is not cured within seven (7) days of receipt of written notice by Client from PrivCo specifying the breach or amount not paid.
3. Compensation to PrivCo. In consideration for the being granted access to the API and Data, Client will pay PrivCo the amounts specified on the Order Form, as described in the Order Form. All amounts payable under this Agreement must be paid in US Dollars. Late payments may accrue interest at the lesser of 1.5% per month or the maximum amount permissible under applicable law. Client will also reimburse PrivCo for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Client shall pay PrivCo any sales taxes imposed on payments by Client to PrivCo hereunder unless Client establishes an exemption for such taxes.
4. Representations, Warranties and Support .
(a) Client acknowledges and agrees that PrivCo is merely a technology provider to Client, and that Client is solely responsible for its use of the API. PrivCo represents and warrants that the API will operate in substantial conformance with the API Materials. Client’s use of the API must at all times comply with all applicable laws, rules and regulations.
(b) DISCLAIMER . EXCEPT AS EXPLICITLY WARRANTED ABOVE, THE API, API MATERIALS, AND DATA, ALONG WITH OTHER MATERIALS PROVIDED BY PRIVCO IN CONNECTION WITH THIS AGREEMENT, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PRIVCO, ON BEHALF OF ITSELF AND ITS SUPPLIERS, disclaims all warranties and conditions of any kind, whether express, implied or statutory, including, but not limited to, the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement. Neither PRIVCO nor any of its licensors guarantees the availability, accuracy, completeness, reliability, or timeliness of any data or information AVAILABLE THROUGH THE PRIVCO API OR API MATERIALS. PRIVCO DOES NOT GIVE TAX OR INVESTMENT ADVICE OR ADVOCATE THE PURCHASE OR SALE OF ANY SECURITY OR INVESTMENT. YOU SHOULD ALWAYS SEEK THE ASSISTANCE OF A PROFESSIONAL FOR TAX AND INVESTMENT ADVICE.
(c) PrivCo will provide API-related support services to Client as described in the Order Form.
5. Term and Termination.
(a) This term of this Agreement commences on the Effective Date and will continue for the period specified on the Order Form, unless terminated earlier as described in this Section (the ” Term“).
(b) In the event that either party believes the other is materially not performing its obligations under this Agreement, or has breached this Agreement, such party will notify the non-performing or breaching party in writing at the address specified on the Order Form. The non-performing or breaching party will have 30 days from the receipt of notice to cure the alleged non-performance or breach, and to notify the non-breaching party in writing that cure has been effected. If the breach is not cured within thirty days or is not capable of being cured, then the non-breaching party will have the right to terminate the Agreement effective immediately upon notice to the other.
(c) Upon termination of this Agreement: (i) PrivCo will have no obligation to provide the Data or access to the API after the effective date of the termination; (ii) Client will pay to PrivCo any fees payable under the Agreement; (iii) any and all liabilities accrued prior to the effective date of the termination will survive; and (iv) the parties’ respective rights and obligations under Sections 1(b), 1(d), 5(b), 6(c), 7, 8, and 9 will survive expiration or termination of this Agreement.
(a) “Confidential Information” means any non-public information, data, or other materials provided or disclosed by one party to the other in connection with performing each party’s obligations under this Agreement. Without limiting the previous sentence, the API, API Materials and Data will be deemed PrivCo Confidential Information and may only be used in accordance with this Agreement.
(b) Each party acknowledges, understands and agrees that this Agreement and the relationship established hereby create a relationship of confidence and trust between the parties with respect to Confidential Information. Each party, as recipient of Confidential Information will not, during or subsequent to the Term, use the other party’s Confidential Information for any purpose whatsoever other than the performance of its obligations under this Agreement or disclose the other party’s Confidential Information to any third party. It is understood that the discloser’s Confidential Information will remain the sole property of the discloser. The recipient further agree to take all reasonable precautions to prevent any unauthorized disclosure of discloser’s Confidential Information to any third party without the discloser’s prior written approval. If the recipient becomes legally compelled to disclose any of the discloser’s Confidential Information, then the recipient will provide the discloser prompt written notice of such disclosure and will assist the discloser in seeking a protective order or another appropriate remedy at the discloser’s sole cost and expense. If the discloser waives the recipient’s compliance with this Agreement or fails to obtain a protective order or other appropriate remedy, then the recipient will furnish only that portion of the discloser’s Confidential Information that is legally required to be disclosed, provided that any discloser Confidential Information so disclosed will maintain its confidentiality protection for all purposes other than such legally compelled disclosure. In addition, recipient will be permitted to disclose the discloser’s Confidential Information in confidence to its attorneys in connection with the enforcement of its rights hereunder.
(c) Confidentiality of Agreement. Client and PrivCo respectively acknowledge and agree that the terms and conditions of this Agreement are Confidential Information of both parties and, except as may be mutually approved by both parties in advance, each party agrees to maintain the terms and conditions of this Agreement as Confidential Information; provided, however, that nothing in this Section 7 will prohibit PrivCo from disclosing this Agreement as part of due diligence for any transaction or series of transactions, including, but not limited to any financing, undertaken by PrivCo.
(d) Disclosures to Personnel. The confidentiality obligations of each of the parties apply to its affiliated and related entities, officers, managers, employees, contractors and agents, each of whom must comply with and be subject to the terms and conditions of these confidentiality obligations. Furthermore, each party may disclose Confidential Information to any business and legal representatives of such party who have a legitimate need to know such confidential information and who agree to be subject to the terms and conditions of the applicable confidentiality obligations hereunder or who otherwise have a duty of confidentiality to such party.
(e) Return of Materials . Upon the termination or expiration of this Agreement or upon the discloser’s earlier request, the recipient will (i) deliver to the discloser all of the discloser’s property or Confidential Information that the recipient may have in its possession or control, or (ii) destroy all of the discloser’s Confidential Information that the recipient may have in its possession or control and provide the discloser with a certificate of destruction.
7. Indemnification and Liability .
(a) PrivCo Indemnity. PrivCo will defend Client and its directors, officers, employees, successors and assigns, against any third party claim alleging that the API and/or API Materials violates or infringes any intellectual property right of any third party, and PrivCo shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by PrivCo. If the API and/or API Materials become, or in PrivCo’s opinion is likely to become, the subject of an infringement claim, PrivCo may, at its expense, either (a) procure the right for Client to continue using the API and/or API Materials (whichever is applicable); or (b) at PrivCo’s option, replace or modify the same so that it becomes non-infringing (provided such replacement or modification does not materially adversely affect Client’s use of API and/or API Materials (whichever is applicable) as contemplated hereunder). If neither of the foregoing alternatives is available on terms which are reasonable in PrivCo’s reasonable judgment, PrivCo may terminate this Agreement upon written notice to Client and refund to Client any prepaid license fees paid by Client under this Agreement for the remainder of the term of this Agreement. Notwithstanding anything to the contrary in this Agreement, PrivCo shall have no liability for any claim for which Client seeks indemnification to the extent the claim is based upon the use of the API and/or API Materials by Client in any manner not permitted under this Agreement. This Section states PrivCo’s entire liability and Client’s sole and exclusive remedy for third-party infringement claims arising under this Agreement.
(b) Client Indemnity. Client will, at its own expense, indemnify, defend and hold PrivCo harmless against all third party claims arising as a result of or in connection with any claim or allegation that Client’s use of the API violates any applicable law, rule, or regulation, or any of the limitations set forth in this Agreement or the API Materials and Client shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Client.
(c) Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall (at the indemnifying party’s expense) reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. The indemnifying party will not enter into any settlement or agree to any disposition that imposes any conditions or obligations on the indemnified party without indemnified party’s written consent, such consent to be granted or withheld in indemnified party’s sole discretion. The indemnified party may at any time participate in any matter or litigation, including, but not limited to, participation in any indemnifiable claim through counsel of its own selection, provided that the hiring of such counsel will be at the indemnified party’s sole expense.
(d) Limitation of Liability. EXCEPT FOR A BREACH OF SECTIONS 7 (CONFIDENTIAL INFORMATION) AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 8(a) (INDEMNIFICATION) OR FOR CLIENT’S UNAUTHORIZED USE OR DISCLOSURE OF DATA, EACH PARTY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT WILL PRIVCO’S TOTAL LIABILITY TO CLIENT UNDER THIS AGREEMENT FOR ALL DAMAGES EXCEED THE AMOUNTS PAID BY CLIENT TO PRIVCO UNDER THIS aGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE CLAIM.
(e) No Refund. In addition to any other remedies herein, in the event that PrivCo terminates this Agreement prior to the expiration of a Term due to Client’s breach of any agreement between it and PrivCo, including this Agreement, Client shall not be entitled to a refund of any fees already paid to PrivCo (including the Total Net Fee).
8. General Provisions.
(a) Choice of Law. This Agreement will be governed by and construed under the laws of New York as applied to agreements among New York residents entered into and to be performed entirely within the State of New York. The parties agree to submit to the venue and jurisdiction of the City and County of New York or the Southern District of New York. Each party hereby waives all defenses of lack of personal jurisdiction and forum non-conveniens.
(b) Successors and Assigns. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets (each, a “Change of Control“). Notwithstanding the foregoing, you may not assign this Agreement, by way of Change of Control or otherwise, to a competitor of PrivCo. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
(c) Integration. This Agreement represents the entire agreement between the parties relating to the subject matter of this Agreement and supersedes and replaces any and all prior written or oral agreements relating to the subject matter of this Agreement.
(d) Severability. Should any provision of this Agreement be found to be illegal or unenforceable, the other provisions will nevertheless remain effective and will remain enforceable to the greatest extent permitted by law.
(e) Amendment and Waiver. This Agreement may only be amended only by a written agreement executed by Client and PrivCo. No provision of this Agreement may be waived except by a written document executed by the party entitled to the benefits of the provision. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement. A waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver.
(f) Notices . All notices must be delivered to the addresses and contact points specified on the Order Form. Notices will be deemed received (A) upon receipt if delivered in person; (B) four days after depositing with the U.S. Mail if sent by certified or registered mail, return receipt requested and postage prepaid; (C) one business day after deposit with a reputable overnight courier with overnight delivery specified and delivery prepaid; and (D) by email delivered to all of the addresses set forth in Order Form.
(g) Counterparts. This agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Facsimile, scanned or similar photocopies of signed signature pages will be effective as binding originals.
(h) Headings. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement.
(i) Force Majeure. Neither party will be deemed in default or otherwise liable under this Agreement due to its inability to perform its obligations by reason of any act of God, war, government intervention, riot, earthquake, fire, flood, power outage, failure of the Internet or any similar cause beyond such party’s control.
(j) No Third-Party Beneficiaries. Except as expressly set forth in this Agreement, this Agreement is entered into for the sole benefit of the parties hereof, and except as specifically provided herein, no other person or entity will be a direct or indirect beneficiary of, or will have any direct or indirect cause of action or claim in connection with, this Agreement.
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