APPLICATION PROGRAMMING INTERFACE TERMS AND CONDITIONS
WHEREAS, Company owns and operates certain software solutions designed for lawn care and pest control companies and related services (the “Company Services”);
WHEREAS, Licensee is a current subscriber of the Company Services pursuant to Company’s separate Terms and Conditions applicable to Licensee’s subscription to the Company Services (the “Subscription”);
WHEREAS, Licensee offers certain services which Licensee wishes to integrate into the Company Services (the, “Technology”);
WHEREAS, Licensee would like to license and use Company’ application programming interface (“API”) to transmit and receive information (“Data”) on behalf of Company’ and Licensee’s mutual customers (“Customer”) for use by, with and for the Technology.
NOW, THEREFORE, in consideration for the mutual promises and covenants set forth herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. License.
1.1. License Grant. During the Term of this Agreement, and subject to the term and conditions set forth herein, Company hereby grants to Licensee a limited, non-exclusive, non-transferrable, non-sublicensable, royalty-free, revocable license to access and use the API to: (A) integrate the Technology with the Company Services, test, and read/write Data; (B) use the documentation and specifications for the API (“Documentation,” and collectively with the API, Company Services and the Environment, the “Services”) for the purpose of fulfilling Licensee’s rights and obligations hereunder; and (C) make available and use the API and Data through the Technology on behalf of Customers. The license set forth in this Section 1.1 shall be conditioned upon Licensee maintaining during the Term of this Agreement a current Subscription.
1.2. Restrictions. Licensee will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever, except for as described in Section 1.1 above; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Services; (c) apply systems to extract or modify information in the Services using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Services any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) transmit through or store data on the Services that is regulated by the PCI Data Standards (f) input or transmit through or to the Services any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Services or grant unauthorized access thereto; (g) use or access the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes; or (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Services to compete with Company in any way; or (j) permit any third party to use or access the Services other than Customers, or Licensee’s direct employees or agents who are acting on Licensee’s behalf.
1.3. Maintenance. Licensee agrees that Company may update, correct or modify the Services as Company deems necessary from time to time. All such updates, corrections and modifications will be considered part of the Services for purposes of this Agreement.
1.4. Applicable Laws. Licensee’s access to and use of the Services is subject to all applicable international, federal, state and local laws and regulations. Licensee may not use the Services or any data in violation of or to violate any law, rule or regulation. Ensuring Licensee’s use of the Services is compliant with applicable laws is the responsibility of Licensee.
1.5. Suspension of API. Company has the right to immediately suspend the API (a) in order to prevent damage to or degradation of the Services or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Company, Licensee has failed to pay any amounts due and owing. In the case of (a) or (b) Company will give Licensee prior notice if reasonable and will ensure that the API is restored as soon as possible after the event given rise to suspension has been resolved to Company’ reasonable satisfaction.
1.6. Setup and Support. Company shall support Licensee’s integration efforts and use of the Services and address issues or defects as in accordance with the terms set forth in Exhibit A (“Maintenance and Support”).
2. Ownership.
2.1. Company. Company’ intellectual property, including without limitation the Company Services, the API and the Documentation, its trademarks and copyrights, and any modification thereof, are and will remain the exclusive property of Company and its licensors. No licenses or rights are granted to Licensee except for the limited rights expressly granted in this Agreement.
2.2. Licensee. Licensee’s intellectual property, including without limitation the Technology, its trademarks and copyrights and any modification thereof, are and will remain the exclusive property of Licensee and its licensors. No licenses or rights are granted to Company except for the limited rights expressly granted in this Agreement.
2.3. Feedback. Licensee agrees that advice, feedback, criticism, or comments provided to Company related to the Company Services, the API and the Documentation are given to Company and may be used by Company freely and without restriction and will not enable Licensee to claim any interest, ownership or royalty in Company’ intellectual property. Likewise, Company agrees that advice, feedback, criticism, or comments provided to Licensee related to the Technology are given to Licensee and may be used by Licensee freely and without restriction and will not enable Company to claim any interest, ownership or royalty in Licensees’ intellectual property.
3. Fees.
3.1. Fees. One-time setup fees, recurring fees and any other fees for Licensee’s use of the API (together, the “Fees”) will be as set forth by Company from time to time and as set forth in the applicable registration form for Licensee’s use of the API.
3.2. Payment Terms. Fees are due and payable by Licensee within 30 days of receipt of an invoice for such Fees. Undisputed amounts that are past due will be subject to a monthly charge of 1.5% per month or the maximum rate permitted by law, whichever is less. Licensee agrees to pay all reasonable costs of collection in the event any amount is not paid when due. All Fees are payable in United States Dollars and non-refundable.
3.3. Taxes. Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature. Including value-added, sales, use or withholding taxes (“Taxes”). Licensee is responsible for paying all Taxes for which Licensee is responsible under this Section. Company may invoice taxes to Licensee and Licensee will pay such taxes, unless Licensee provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Marketing. Neither party will make any public statements or press releases with respect to the subject matter of this Agreement without the prior written approval of the other party which may be withheld in the approving party’s sole discretion. Licensees which integrate products and services into the Company Services via the API may include Company’ name and Company Services in its published list of supported Company Services integrations and partnerships for the purposes of Licensee sales and marketing of the Technology.
5. Confidentiality.
5.1. Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Services, all features and functions thereof and related pricing and product plans will be the Confidential Information of Company.
5.2. Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
5.3. Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
6. Compliance with Laws.
6.1. Personal Information. “Personal Information” means any information that a party collects, receives, or obtains, from or on behalf of a Customer that does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, such as the individual’s name; address; and any other information relating to an identified or identifiable individual, or may otherwise constitute personally identifiable information under any applicable law. Each party acknowledges and agrees that, in the course of performance of this Agreement, it may receive or have access to Personal Information. Each party shall comply with the terms and conditions set forth in this Agreement in its collection, receipt, transmission, storage, disposal, use, and disclosure of such Personal Information and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use, and disclosure of Personal Information under its control or in its possession.
6.2. Data Transmissions. In connection with any transfer of Personal Information between them in the operation of the API, each party: (i) will transfer such Personal Information only through use of a dedicated connection to which they are the only authorized parties or such other method of communication, such as encrypted communication, between them as offers an equivalent level of security and authentication of the recipient; (ii) will not permit any third party to use any such connection to the extent that such use is within that party’s control, except as permitted herein; and (iii) will take adequate and reasonable steps to ensure that access to that Personal Information at each facility that party has or on each system utilized by such party or its subcontractors is limited to authorized personnel of that party. Each party will take reasonable care to ensure that data transmissions between them in the operation of the API that contain any Personal Information are timely, complete, and accurate, and each party will take reasonable steps to retransmit any such data transmission to the other party upon discovery that the original transmission has been lost in transmission or is corrupted. If either party receives data from the other and is informed or believes that such data was not intended for it, the receiving party will notify the sender, promptly take effective steps to return such data, or at the direction of the other party immediately and permanently delete such data from its systems.
6.3. Compliance with Laws. Each party represents that its collection, access, use, storage, disposal, and disclosure of Personal Information does and will comply with all applicable law. Without limiting the parties’ obligations in the preceding sentence, each party shall implement administrative, physical, and technical safeguards to protect Personal Information that are no less rigorous than generally accepted industry standards, including, but not limited to, with respect to implementation, client service, payment security, functionality, ease of use, and the creation, access, storage, destruction, or exchange of Personal Information. If, in the course of performance of this Agreement, a party has access to or will collect, access, use, store, process, dispose of or disclose credit, debit, or other payment cardholder information, that party shall at all times remain in compliance with the Payment Card Industry Data Security Standard (“PCI DSS”) requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at such party’s sole cost and expense.
6.4. Anti-Fraud and Abuse Law Compliance. By entering into this Agreement, the parties specifically intend that no part of any consideration paid hereunder is a prohibited payment for the recommending or arranging for the referral of business or the ordering of items or services; nor are the payments intended to induce illegal referrals of business. If any part of this Agreement is determined to violate an applicable law, the parties agree to negotiate in good faith revisions to the provision or provisions that are in violation. If the parties are unable to agree to new or modified terms as required to bring the entire Agreement into compliance with such applicable law within 30 days, either party may terminate this Agreement on no less than 30 days prior written notice to the other party or sooner if required by any applicable law.
6.5. No Exclusion. If a party becomes debarred, excluded, suspended, or otherwise determined to be ineligible to participate in federal health care programs, that party shall provide notice thereof to the other party. Upon receipt of such notice, this Agreement shall automatically terminate without further action or notice.
7. Disclaimer. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, THAT COMPANY WILL CORRECT ALL ERRORS OR THAT THE SERVICES WILL MEET LICENSEES’S REQUIREMENTS OR EXPECTATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICES THAT ARISE FROM LICENSEE’S TECHNOLOGY OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. COMPANY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability. IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. COMPANY’ MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF FEES LICENSEE HAS PAID TO COMPANY IN THE 3 MONTH(S) PRIOR TO THE EVENT(S) GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
9. Indemnity.
9.1. By Company. Company will indemnify and hold Licensee, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives harmless against any action brought against Licensee by a third party to the extent such action is based on a claim that the unmodified Services as used in accordance with this Agreement infringe a copyright, patent, trademark or misappropriate a trade secret of such third party or other proprietary right enforceable in the country in which Company has authorized Licensee to use the Services. Should the Services become, or in Company’ opinion be likely to become, the subject of any infringement claim, Company may, at its option: (a) procure for Licensee, at Company’ expense, the right to continue using the Services, (b) modify, at Company’ expense, the Services so that it becomes non-infringing but remains functionally equivalent, or (c) terminate Licensee’s right to use the Services and refund to Licensee any unused pre-paid fees for such Services. Company will have no liability for any claim of intellectual property infringement that is based on (i) the use or combination of the Services with any products, services, data or other materials not provided by Company, provided such infringement would not have arisen but for such combination, (ii) the use of other than a current, unaltered version of the Service, (iii) specifications or designed provided by Licensee, or (iv) any unauthorized modification of the Services.
9.2. By Licensee. Licensee agrees to defend and indemnify Company and its affiliates from and against any legal action, demand, suit, or proceeding brought against Company or its affiliates by a third party arising out of or related to Licensee’s use of the Services.
9.3. Indemnification Procedures. Each party’s indemnification obligations are subject to conditions that the indemnified party must: (a) notify the indemnifying party promptly in writing of such claim; (b) permit the indemnifying party to have sole control of the defense, compromise, or settlement of such claim, including any appeals, provided, that the indemnifying party will not settle any claim in a manner that adversely affect the rights of the indemnified party without the indemnified party’s prior written consent; and (c) fully cooperate with the indemnifying party at the indemnifying party’s expense in the defense or settlement of such claim.
9.4. Disclaimer. This Section states the entire liability of Company, and Licensee’s sole and exclusive remedy, with respect to the infringement of any intellectual property rights by the Service.
10. Term and Termination.
10.1. Term. This Agreement will be effective as of the Effective Date and remain in effect until the expiration date of Licensee’s Subscription or as otherwise terminated by either party as permitted by this Agreement.
10.2. Termination. Either party may terminate this Agreement for any reason or no reason by providing at least 90 days’ prior written notice. Either party may terminate this Agreement immediately for a breach by the other party of any of its material terms, if the breaching party has failed to cure such breach (if curable) within 30 days of receipt of written notice from the non-breaching party describing the breach. Either party may terminate this Agreement without notice if the other party becomes insolvent, makes or has made an assignment for the benefit of creditors, is the subject of proceedings in voluntary or involuntary bankruptcy instituted on behalf of or against such party (except for involuntary bankruptcies which are dismissed within 60 days), or has a receiver or trustee appointed for substantially all of its property.
10.3. Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Licensee will immediately cease using the Services for any of Licensee’s customers who have not yet executed a contract with Licensee for the deployment of Technology dependent on the Services, (b) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (c) any unpaid, undisputed amounts due through termination will become immediately due and payable.
10.4. Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Licensee’s payment obligations under this Agreement.
11. Assignment. Licensee may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Company. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective successors and assigns.
12. Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
13. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
14. No Third-Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
15. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
16. Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, pandemics, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
17. Export Compliance. Licensee must comply with United States, foreign and international laws and regulations, including without limitation, the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, and other anti-boycott and import regulations. Such export laws govern use of the Services including technical data and any deliverables provided under this Agreement and Licensee agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Licensee is responsible for ensuring that no data, information, software programs and/or materials resulting from the Services (or direct product thereof) will be exported directly or indirectly in violation of these laws. Licensee will indemnify Company for any violation by Licensee of any applicable export controls or economic sanctions laws and regulations.
18. Governing Law, Jurisdiction and Venue. This Agreement will be governed by and construed in all respects in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles. Each party hereby consents to the exclusive venue and jurisdiction of the courts of Indiana. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
19. Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
