THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION. BY ENTERING INTO THIS AGREEMENT YOU WILL WAIVING YOUR RIGHT TO PURSUE CLAIMS IN COURT AND TO A TRIAL BY JURY. YOU ARE ADVISED TO CONSULT WITH LEGAL COUNSEL BEFORE ENTERING INTO THIS AGREEMENT.
In addition to terms defined elsewhere in this Agreement, the following terms shall have the meanings set forth below:
1.1 “Confidential Information” means non-public information, technical data or know-how of Licensor and/or its affiliates or users, including all Data, which is furnished to Licensee through the APIs.
1.2 “Data” means any data or content posted, uploaded, transmitted or otherwise made available to Licensee by Licensors or users through the APIs, including but not limited to Content and Submissions.
1.3 “Data Breach” means (A) the loss of Data by Licensee; (B) any unauthorized access or modification to Data in Licensee’s possession or control; (C) the inadvertent, unauthorized and/or unlawful use, misuse, release, corruption, modification, transfer, sale or rental of Data in Licensee’s possession or control; (D) any unauthorized access or modification by Licensee or through Licensee’s system to or of Data in Licensor’s possession; or (E) any other act or omission by Licensee that compromises the security, confidentiality, or integrity of Data.
1.4 “Documentation” means the instructions, help files, data, reference materials, and other textual or graphical materials, in both paper and electronic formats, including, but not limited to, flow charts, schematics, user guides, and technical specifications, but excluding commercially available compiler programs and utilities, provided by Licensor in connection with the APIs.
2.1 Licensee is only permitted by this Agreement to use the APIs as described in the Documentation. Licensee agrees to comply with all instructions and access restrictions identified in the Documentation or by Licensor, from time to time. Licensor may place limits on Licensee’s use of the APIs (such as limits on the volume or frequency of API calls) in Licensor’s sole discretion. Licensor may revise the APIs at any time, including the removal of previously available functionality, without notice to Licensee.
2.2 Licensee agrees that it will comply with the terms of this Agreement, any requirements of the Documentation and all applicable law in its use of the APIs.
3.1 Licensee may not use the APIs or enter into this Agreement if you are not of legal age or, in the case of entry by an entity, if you are not authorized to enter into this Agreement by the entity for which you are entering into this Agreement.
3.2 Licensee shall not:
(a) resell, rent, lease, sub-license lend or otherwise exchange for value, the APIs separate from Licensees’ other software or services or otherwise charge others for access to the APIs;
(b) use the APIs to replicate or compete with products or services offered by Licensor;
(c) use the APIs in an environment or for a purpose where the there is a risk of personal injury or property damage in the event of the failure of the APIs;
(d) use the APIs to violate any law or regulation, or engage in threatening or abusive behavior, or encourage, assist or facilitate others to do so; or,
(e) reverse engineer, disassemble or decode the APIs or interfere with the operation of the APIs, or encourage, assist or facilitate others to do so.
3.3 Licensee acknowledges that Licensor is not required to and may not provide any support, maintenance, enhancements or upgrades for the APIs except as otherwise expressly provided herein or otherwise agreed to separately in writing by the Parties.
3.5 Licensee shall not transfer the rights to access and use the APIs granted herein to any party without prior written authorization from Licensor. In the event of a sale, merger or consolidation of Licensee’s business, Licensee may assign this Agreement and its obligations hereunder to any successor or party acquiring substantially all of the assets of Licensee’s business upon written consent from Licensor, which shall not be unreasonably withheld.
4.1 Licensee may not store or collect any Data except as permitted by the functionality of the APIs and in accordance with the instructions and conditions of this Agreement and the Documentation. All Data made available to Licensee or processed by Licensee from or in relation to the APIs shall be stored by Licensee using strong encryption, and in a system designed to securely maintain the integrity, stability and availability of the Data.
4.2 Licensee shall establish and maintain a data protection program that complies with all applicable law relating to the possession, storage and use of Data, including, but not limited to federal, state, and international data protection statutes and/or regulations, and applicable industry standards and best practices, and which includes appropriate administrative, technical, and physical security controls to protect the Data.
4.3 Licensee shall not use any of the Confidential Information except as reasonably required for the performance of this Agreement. In the case of Data pertaining to a user or particular set of users, Licensee shall not use said Data except in accordance with the instructions of such user, set of users or Licensor, as the case may be. Licensee will hold the Confidential Information in confidence by means that are no less restrictive than those used for its own confidential materials, and not less than a reasonable level of care. Licensee agrees not to disclose the Confidential Information to anyone other than its employees, confidential advisors, or subcontractors who are bound by confidentiality obligations and who need to know the same to perform Licensee’s obligations hereunder. In the case of Data pertaining to a user or particular set of users, Licensee shall not disclose such Data other than to such user or group of user and only in accordance with the instructions of the user, set of users or Licensor. The confidentiality obligations set forth in this Section will survive for as long as applicable information meets the definition of Confidential Information. In the event that Licensee receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, or such disclosure is otherwise required by law, Licensee shall give prompt notice to Licensor prior to any such disclosure sufficient to permit the disclosure to be contested, and shall fully cooperate with Licensor to contest or otherwise limit such disclosure, and if disclosure is ultimately required, shall only disclose that portion of the Confidential Information that is strictly required by law to be disclosed.
4.4 Licensee shall promptly comply with any request by a user to delete any Data supplied by that user to Licensee, or supplied to Licensee by Licensor about that user. Further, Licensee shall delete Data from users that have terminated or deactivated their use of the APIs through Licensee’s services.
4.5 Upon expiration or termination of this Agreement, Licensee shall permanently delete all Data and any other or further information supplied to Licensee through the APIs.
4.6 Licensee must immediately notify Licensor in the event any actual or suspected Data Breach. Upon discovery by Licensee of any actual or suspected Data Breach, Licensee shall immediately investigate and take appropriate remedial actions to mitigate the effects of the Data Breach. Such investigation and remediation activities shall be in accordance with applicable laws, regulations, industry standards, and industry best practices. Upon request, Licensee shall provide Licensor with a summary report of its investigation and remediation activities.
4.7 If a Licensee will be storing or processing Data of any EU or European Economic Area (“EEA”) residents outside the EU or EEA, the Licensee agrees to negotiate in good faith with Licensor to sign the European Model Contract Clauses for personal data transfer or take other necessary steps to ensure compliance with EU data protection laws. Licensee may not receive any such Data without additional agreements in place with Licensor, shall notify Licensor if Licensee receives any such Data without such additional agreements in place, and shall promptly delete all such Data in its possession unless such additional agreements are in place.
4.8 Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, Licensee will either: (i) return all of such Confidential Information and all copies thereof in Licensee’s possession or control to Licensor; or (ii) destroy all Confidential Information and all copies thereof in Licensee’s possession or control.
5.1 Term and Termination. The term (“Term”) of this Agreement shall be until terminated by Licensee or Licensor. Licensee may terminate this Agreement at any time by ceasing to use the APIs. This Agreement may be terminated by Licensor immediately at any time upon notice to Licensee or by restricting Licensee’s use or access to the APIs.
5.2 Effect of Termination. Upon termination or expiration of this Agreement, all rights granted under Section 2 or any of its subsections shall terminate, Licensee shall disable and remove the APIs from any of its products or services, and Licensee shall return or destroy all copies of the APIs, Documentation and other Proprietary Information of Licensor in its possession, if any.
5.3 Survival. The provisions set forth in Sections 3-8 shall survive any termination of this Agreement.
6.1 EXCEPT AS OTHERWISE PROHIBITED BY LAW, THE APIs, ALL DOCUMENTATION AND ANY SERVICES PROVIDED BY LICENSOR ARE PROVIDED HEREUNDER ON AN “AS IS” BASIS. LICENSOR MAKES NO WARRANTIES FOR THE APIs DOCUMENTATION OR ANY SERVICES SUPPLIED BY LICENSOR, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THOSE OF NON-INFRINGEMENT, MERCHANTABILITY, AVAILABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 IN NO EVENT SHALL LICENSOR OR ITS EMPLOYEES, AGENTS, PERSONNEL OR AFFILIATES BE LIABLE FOR ANY DAMAGES FOR LOST PROFITS, INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES ARISING OUT OF THE APIs, DOCUMENTATION, ANY SERVICES PROVIDED BY LICENSOR, ANY BREACH OF THIS AGREEMENT, OR THE OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR SHALL NOT BE LIABLE TO LICENSEE FOR ANY DAMAGES HEREUNDER IN EXCESS OF THE AMOUNTS PAID BY LICENSEE FOR USE OF THE APIs.
7.1 Licensee shall defend, indemnify and hold Licensor harmless and its directors, employees, officers and users, and those of Licensor’s affiliates, against all damages, liabilities, costs, losses, fees (including reasonable legal fees) and expenses relating to any allegation or third-party legal proceeding to the extent arising from: (a) your violation of this Agreement, (b) any content distributed, routed or facilitated by the use of the APIs by you or your users, or (c) any damage or loss caused by your use of the APIs or use by your users.
8.1 Captions. The captions appearing herein are for the convenience of the Parties only and shall not be construed to affect the meaning of the provisions of this Agreement.
8.2 Notices. All notices to Licensor hereunder shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, to Licensor at Starburst Labs, 45 West 60th Street, Suite 19H, NY, NY 10023 Attn: John Rourke, with an e-mail copy to email@example.com. All notices from Licensor to Licensee may be made by e-mail to the most recent e-mail address on-file by Licensor for Licensee, which shall be effective upon transmission by Licensor.
8.3 Independent Contractors. The Parties agree that each is an independent contractor and that this Agreement does not create any employment relationship between the Parties for taxation or any other purpose. Each Party shall be responsible for the payment of compensation (including provision for employment taxes, worker’s compensation and any similar taxes) associated with the employment of its personnel. Neither Party shall have the right to bind the other to any agreement with a third party, or to incur any obligation or liability on behalf of the other Party.
8.4 Partial Invalidity. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement, or any such terms in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.
8.5 Assignment. This Agreement may not be assigned by Licensee without the express written consent of Licensor, which consent will not be unreasonably withheld, except that Licensee may, at its discretion, with notice to Licensor, assign the Agreement to any successor of Licensee or any person acquiring substantially all of the business and assets of Licensee to which this Agreement relates. Any impermissible assignment shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
8.6 Disputes; Governing Law; Jurisdiction.
(a) This Agreement shall be governed by the laws of the State of New York, United States of America, without giving effect to its choice or conflict of law provisions.
(b) MANDATORY ARBITRATION – Licensee agrees that any claim or dispute between the Parties arising out of or relating in any way to Licensee’s use of or access to the APIs or any service provided by Licensor, will be resolved solely and exclusively by binding arbitration, rather than in court, except that Licensee may assert claims in small claims court if the claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of New York shall govern this Agreement, and shall be used in any arbitration proceeding.
(c) There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
(d) To begin an arbitration proceeding, Licensee must send a letter requesting arbitration and describing Licensee’s claim to the following address: Starburst Labs, 45 West 60th Street, Suite 19H, NY, NY 10023 Attn: John Rourke.
(e) Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The location of arbitration shall be in New York, New York.
(f) Licensee agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both Licensee agrees that the Parties have each waived any right to a jury trial.
(g) Notwithstanding the foregoing, Licensee agrees that Licensor may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights, or for defense and indemnification or contribution.
(h) To the extent arbitrations does not apply, Licensee agrees that any dispute arising out of or relating to the APIs, or to Licensor, may only be brought by Licensee, and may be brought by us, in a state or federal court located in New York, New York. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO JURISDICTION AND VENUE IN NEW YORK.
8.7 Entire Agreement. This Agreement contains the entire agreement between the Parties hereto with respect to the APIs. This Agreement and the documents referred to herein supersede all negotiations, agreements and understandings among the Parties with respect to the subject matter hereof. This Agreement may be updated by Licensor upon notice to Licensee and acceptance by Licensee of the updated terms, which shall be deemed accepted thirty (30) days after Licensor provides such notice if Licensee continues to use or access the APIs.