QIPIT, INC. APPLICATION PROGRAMMING INTERFACE LICENSE TERMS OF SERVICE AGREEMENT
BY CHECKING THE BOX MARKED "I ACCEPT," YOU AGREE TO USE THE APPLICATION PROGRAMMING INTERFACE (API) SOLELY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS APPLICATION PROGRAMMING INTERFACE LICENSE AGREEMENT (THE “AGREEMENT”), AND YOU AGREE THAT YOU ARE BOUND BY AND ARE A PARTY TO THIS AGREEMENT. YOU WARRANT THAT YOU ARE AT LEAST EIGHTEEN YEARS OLD AND THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS.
YOUR USE OF THE APIs IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, (i) CHECK THE BOX MARKED "I DECLINE" AND (ii) YOU MAY NOT USE THE APIs.
1. GRANT OF LICENSE - Subject to your ("Licensee's") full compliance with all of the terms and conditions of this Application Programming Interface (API) Agreement ("Agreement"), Qipit, Inc. ("Company") grants Licensee a non-exclusive, revocable, non-sublicensable, nontransferable license to use the Company application programming interface and other materials provided by Company (collectively, "APIs") to develop, reproduce and distribute applications that interoperate with qipit.com or any other web property owned by Company ("Company Services"). Licensee may not use the APIs for any other purpose without Company's prior written consent. Licensee shall not use the APIs in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: life saving or life critical applications, spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email ("spam"), multi-level marketing proposals, hate materials, hacking/surveillance/interception/descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, police items, weapons and accessories; or for any other unlawful purpose or any subject matter prohibited by the qipit.com Terms of Service (“Terms of Service”).
2. PROPRIETARY RIGHTS - As between Company and Licensee, the APIs and Company Services and all intellectual property rights in and to the APIs and Company Services are and shall at all times remain the sole and exclusive property of Company and are protected by applicable intellectual property laws and treaties.
3. QIPIT SERVICE – Licensee will establish a user account with Company for use of Company Services in connection with Licensee's use of the APIs. Any payment received by Company in connection with Licensee's use of the APIs shall be solely for the right to use the service provided by the Company Services ("Qipit Service") in accordance with the Terms of Service and solely through Licensee's use of the APIs as authorized herein and in no event shall Company's liability to any party resulting from Licensee's use of the APIs, Company Services or Qipit Service exceed the amount of the payments made by Licensee. Licensee's right to use the Qipit Service shall be subject to the written payment terms specified by the Company, the terms hereof and the Terms of Service. Unless otherwise provided in the written payment terms, such right to use the Qipit Service shall be for a limited number of uses and for a limited period of time which shall not exceed 90 days from the applicable date of purchase of such right to use the Qipit Service. Following the expiration of any time period specified in the written payment terms, Licensee's right to use the Qipit Service with respect to such payment shall automatically expire and the Company shall have no further obligations with respect to such payment. Any payment made by Licensee to Company in connection with Licensee's user account will be made through a third party payment processor and Licensee acknowledges and agrees that Company shall not be responsible for any damages resulting from Licensee's use of such third party payment processor. All sales are final.
4. OTHER RESTRICTIONS - Licensee may not use the APIs or Company Services except as permitted in this Agreement. Company indeed reserves the right to limit at its exclusive and sole discretion the usage (volumes, bandwidth, etc) of the APIs and/or Company Services. Only the "Enterprise License" is suitable for intensive or commercial/professional usage. Without limiting the foregoing, except as expressly and unambiguously authorized under this Agreement, Licensee may not (i) copy, redistribute, encumber, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify, alter, or create derivative works of any part of the APIs or Company Services, (ii) otherwise use the APIs or Company Services on behalf of any third party, or (iii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the APIs, Company Services or any scans, content or other output generated by the Company Services. This Agreement does not include any right for Licensee to use any trademark, service mark, trade name or any other mark of Company or any other party or licensor. All trademarks used in connection with the APIs or Company Services are owned by Company, its affiliates and/or its licensors. No rights or licenses are granted except as expressly and unambiguously set forth herein.
5. WARRANTY DISCLAIMER - THE APIs AND COMPANY SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, COMPANY AND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE APIs, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, COMPANY DISCLAIMS ANY WARRANTY THAT LICENSEE'S USE OF THE APIs AND COMPANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND LICENSEE HEREBY AGREES THAT THE PRACTICE OF ANY SUCH SUBJECT MATTER SHALL BE ENTIRELY AT ITS OWN RISK.
FURTHERMORE, NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED: (I) AS A WARRANTY OR REPRESENTATION AS TO THE VALIDITY OR SCOPE OF ANY CLASS OR TYPE OF ANY INTELLECTUAL PROPERTY RIGHT LICENSED HEREUNDER; (II) AN AGREEMENT TO BRING OR PROSECUTE ACTIONS OR SUITS AGAINST THIRD PARTIES FOR INFRINGEMENT AND/OR (III) AN AGREEMENT CONFERRING ANY RIGHT TO BRING OR PROSECUTE ACTIONS OR SUITS AGAINST THIRD PARTIES FOR INFRINGEMENT.
6. SUPPORT AND UPGRADES - This Agreement does not entitle Licensee to any support for the APIs, unless Licensee makes separate arrangements with Company and pays all fees associated with such support. Any such support provided by Company shall be subject to the terms of this Agreement.
7. LIABILITY LIMITATION - REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY OR ITS VENDORS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT DAMAGES, LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE APIs OR OTHERWISE UNDER THIS AGREEMENT, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. IN ANY CASE, TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY’S SOLE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE THE RETURN OF ANY PAYMENT PAID BY LICENSEE TO THE COMPANY UNDER THIS AGREEMENT IN THE NINETY DAY PERIOD PRECEDING A CLAIM FOR SUCH LIABILITY. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN NINETY (90) AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, COMPANY DISCLAIMS ALL LIABILITY OF ANY KIND OF COMPANY'S VENDORS. LICENSEE ACKNOWLEDGES THAT ALL LIMITATIONS ON POTENTIAL LIABILITIES ARE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
8. INDEMNITY - Licensee agrees that Company shall have no liability whatsoever for any use Licensee makes of the APIs or Company Services. Licensee shall indemnify and hold harmless Company from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys' fees) arising from Licensee's use of the APIs and Company Services.
9. TERM AND TERMINATION - This Agreement shall continue until terminated as set forth in this Section. Either party may terminate this Agreement by written notice at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the license granted hereunder. Upon termination of this Agreement for any reason, Licensee shall stop using the APIs and immediately cease all calls to and use of the APIs or Company Services, and shall so certify to Company that such actions have occurred. Company shall have the right to inspect and audit Licensee's facilities to confirm the foregoing. Sections 6 through 12 and all accrued rights to payment shall survive termination of this Agreement.
10. GOVERNMENT USE - If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the APIs are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The APIs are a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the APIs by the Government shall be governed solely by the terms of this Agreement.
11. EXPORT CONTROLS - Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the APIs in violation of any such restrictions, laws or regulations. By using the APIs, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
12. MISCELLANEOUS - This Agreement, together with the Terms of Service, which is hereby incorporated herein, constitutes the entire agreement between Licensee and Company pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under Delaware law as such law applies to agreements between Delaware residents entered into and to be performed within Delaware by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Company, any action or proceeding arising from or relating to this Agreement must be brought in the state or federal courts of Wilmington, Delaware, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys' fees. This Agreement may be amended only by a writing executed by Company. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Company to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Company's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Company's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Company expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.