Last updated: 4/14/16
Thank you for your interest in Orphid, Inc., a Delaware corporation with its principal place of business at 3816 22nd Street, San Francisco, California 94114 (“Projector”). This API Access Agreement (the “Agreement”) is a legally binding contract between Projector and the company, organization, or other person (“Developer”) that will be using Projector’s Service.
Please read the following terms carefully. THE INDIVIDUAL CLICKING “I ACCEPT” OR USING THE SERVICE ACKNOWLEDGES THAT THEY HAVE READ, UNDERSTOOD, AND AGREE ON BEHALF OF DEVELOPER TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND FURTHER REPRESENTS AND WARRANTS TO PROJECTOR THAT THEY HAVE THE AUTHORITY TO BIND DEVELOPER TO THE AGREEMENT. If Developer does not agree to the Agreement, then Developer does not have Projector’s permission to use the Service.
The parties agree as follows:
“API” means the application programming interface that allows a software application to interact with the Services.
“API Key” means a digital credential issued by Projector that enables access to and use of the API.
“Developer Data” means any data that is provided by Developer to Projector via the API.
“Developer Software” means any software developed, distributed, or used by Developer that has the capability of accessing or using the API or the Service.
“Documentation” means the developer documentation or other written or online materials that Projector may make available from time to time regarding the API and the Service.
“Effective Date” means the date upon which the Developer agrees to be bound by the terms and conditions of this Agreement, as set forth in the preamble.
“Service” means the notification management system and services provided by Projector.
SDK ACCESS AND LICENSES
SDK. Projector may make a software development kit for the API, including related Documentation, available at [URL] (“SDK”).
API Access. Developer may access the API during the Term, including indirectly by means of the SDK and Developer Software, but only using an API Key issued by Projector and only in accordance with the provisions of this Agreement.
Feedback License. If Developer chooses to provide Projector with bug reports, compatibility issues, product ideas, or suggestions for new designs, features, functionality, content, and other modifications and improvements to the Service, the API, or Projector’s other platforms, products, and services (“Feedback”), then Developer grants Projector a non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, transferable, sublicensable right to use and exploit the Feedback in any manner and for any purpose, including to modify and improve Projector’s commercial products and services. Nothing in this Agreement requires Developer to provide Projector with any Feedback.
Ownership; All Other Rights Reserved. Projector and its licensors own all right, title, and interest in and to the API, SDK, Documentation, and the Service. Except for the licenses expressly granted in this Section 2, nothing in this Agreement grants any license or transfers any right, title, or interest in or to any intellectual property of either party, whether by implication, estoppel, or otherwise.
Data. Developer grants Projector a non-exclusive, non-transferable, royalty-free license to use Developer Data: (i) in connection with providing the Service; (ii) to detect, prevent, reduce, or otherwise address fraud, security, or technical issues; (iii) improve Projector’s products and services; and (iv) to understand usage trends, develop analytics and otherwise market Projector’s products and services using aggregate Developer Data.
BETA RELEASE AND CONFIDENTIALITY
Beta Release. The versions of the API and the Service that Projector makes available to Developer under this Agreement are pre-production versions (“Beta Versions”) that have not been fully tested or released for general use. It is likely that Beta Versions contain errors, including errors that may cause malfunctions, performance failures, and loss of data. By accessing or using in any manner (including by means of Developer Software) the Beta Versions, Developer accepts the risk of such errors.
Confidentiality. Information regarding the performance and functionality of the Beta Versions and the results of Developer’s use and testing of the Beta Versions (“Confidential Information”) are the confidential and proprietary information of Projector. Developer will not disclose Confidential Information to any third person, except with the prior written permission of Projector or as required by law or judicial process.
Acceptable Use. Developer shall not: (i) use the Service for any illegal purpose or in violation of any applicable law or regulation; (ii) access the API in a fraudulent manner, including by using any API Key not issued to Developer by Projector; (iii) rent, lease, resell, or otherwise transfer access to the API or the Service, or in any other way allow third parties to access the API or the Service; (iv) disable or circumvent any feature of the API or the Service that provides or enhances security, restricts access, monitors use, or enforces limitations on use; (v) interfere with or impair the operation of the Service by any means including introduction of malicious code or by excessive usage or network traffic; (vi) provide an API Key to any third party; or (vii) attempt to do, assist any third party to do, or develop or distribute any Developer Software that does, any of the foregoing.
No High-Risk Use. The Service is not designed or intended for use in any manner where a performance failure could cause injury or death to persons, or substantial damage to property or the environment, including use in nuclear or chemical facilities, control or navigation of aircraft or motor vehicles, life support or safety equipment, or weapons systems; and Developer must not use, develop, or distribute any Developer Software that uses the Service in any such manner.
Unauthorized Access. Developer will notify Projector immediately of any known or suspected unauthorized use of the API or the Service that involves an API Key issued to Developer.
Export Control. With respect to Developer Software, Developer will comply with all export control laws and regulations of the United States of America.
Misuse. In the event that Projector reasonably suspects any breach of this Section 4 by Developer or involving Developer Software or an API Key issued to Developer, Projector may disable Developer’s API Keys and suspend Developer’s access to the Service immediately and without prior notice, in addition to and without prejudice to any other remedies Projector may have.
Changes to the Agreement or the Fees. Projector may modify the Agreement or the fees charged for access to the API and use of the Service on a going-forward basis at any time, including charging a fee for features that were previously offered for free. Projector will notify Developer at least 60 days prior to the date upon which any such modification of the Agreement, increase in fees, or addition of new fees will take effect.
Changes to Projector’s Products and Services. Projector continually strives to improve its products and services, and reserves the right to improve or modify the API, the Service, and all the features and functions thereof at any time and in any manner, at its sole discretion.
Remedy. In the event that Developer does not accept any change made by Projector pursuant to Section 5.1, Developer’s sole remedy is to terminate this Agreement as set forth in Section 9.2.
WARRANTIES AND DISCLAIMERS
Authority. Each party represents and warrants to the other party that it (i) is a corporation or other entity authorized to do business pursuant to applicable law, (ii) has the full right and authority to enter into, execute, and perform its obligations under this Agreement, and (iii) has taken all necessary action to enter into and perform this Agreement and to grant the rights granted herein.
Embargos and Restrictions. Each party represents and warrants to the other party that it (i) is not listed on any list issued by the United States government of prohibited or restricted parties, and (ii) is not located in any country that is subject to an embargo by the United States government or has been designated by the United States government as a state sponsor of terrorism.
No Other Warranties. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 6, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, OR TRADE USAGE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY
No Consequential Damages. IN NO EVENT WILL EITHER PARTY OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS, SUBSIDIARIES, LICENSORS, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
Dollar Cap. UNDER NO CIRCUMSTANCES WILL PROJECTOR’S TOTAL LIABILITY FOR ANY MATTERS ARISING UNDER THIS AGREEMENT EXCEED ONE THOUSAND UNITED STATES DOLLARS.
Application. THE DISCLAIMERS AND LIMITATIONS OF SECTIONS 6.3 AND 7 WILL APPLY REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE), EVEN IF THE RELEVANT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE; AND IF ANY APPLICABLE LAW LIMITS THE APPLICATION OF SUCH SECTIONS, THE DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER SUCH LAW.
Indemnification by Developer. Developer shall defend, indemnify, and hold harmless Projector against any Claim arising from Developer’s use of the API or the Service, and Developer shall pay all agreed settlements and court judgments owed by Projector to such third party in respect of such Claim.
Requirements. Developer’s indemnity obligations as set forth in Section 8.1 will extend only to those Claims for which (i) Projector promptly notifies Developer of the Claim, (ii) Projector promptly gives Developer sole control over the defense and settlement of the Claim, provided however that Developer will not agree without Projector’s consent (not to be unreasonably withheld) to any settlement that admits any wrongdoing on the part of Projector, and (iii) Projector provides Developer with reasonable cooperation in defense or settlement of the Claim, upon Developer’s request and at Developer’s expense.
TERM AND TERMINATION
Term. This Agreement will commence on the Effective Date and will continue in effect until terminated by either party in accordance with Section 9.2 or 9.3 (such period of time, the “Term”).
Termination for Convenience. Either party may terminate this Agreement for any reason or no reason by giving at least 30 days’ notice to the other party.
Termination for Bankruptcy. Either party may terminate this Agreement immediately upon notice if the other party becomes insolvent, files for any form of bankruptcy, makes any assignment for the benefit of creditors, ceases to conduct business in the ordinary course, or upon appointment of a bankruptcy receiver, bankruptcy trustee, or similar official to manage such party’s affairs.
Effect of Termination. The following obligations will survive the expiration or termination for any reason of this Agreement: Sections 2.3, 2.4, 2.5, 3.2, 6.3, 7, 8, 9.4, and 10, as well as any payment obligations of either party accrued prior to such expiration or termination.
Governing Law and Forum. This Agreement will be governed by and interpreted in accordance with the laws of the State of California, without regard to conflicts of law principles. All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. Each party hereby consents to personal jurisdiction in such courts, and waives any and all objections based on venue or inconvenient forum in such courts.
Notice. All notices made or required in connection with this Agreement will be deemed given (i) three days after they are sent by certified U.S. mail or (ii) one day after they are sent by overnight delivery via an internationally recognized express delivery service, in each case with delivery confirmation and with all postage and delivery fees prepaid, to the address set forth for the receiving party in the preamble of this Agreement or to such other address as the receiving party may designate by notice from time to time.
Assignment. Neither party may assign this Agreement by operation of law or otherwise without the consent of the other party, except that either party may assign this Agreement to its successor in interest in the event of a merger, acquisition, or reorganization of such party, or the sale of substantially all of such party’s stock or assets to which this Agreement relates. Any assignment in violation of this section is void.
Independent Contractors. The relationship between the parties is that of independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, joint venture, or partnership. Neither party has any authority to bind or otherwise obligate the other party in any manner.
Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter of this Agreement, and entirely supersedes all prior agreements and understandings, whether written or verbal, related to such subject matter.
Severability. In the event that any term or provision of this Agreement is held by a competent court to be illegal or unenforceable, such term will be reformed only to the extent necessary to make it valid and enforceable; and in any event the validity and enforceability of the other provisions of this Agreement will not be affected or impaired thereby.
Waiver. Failure by either party to enforce any provisions of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.
Counterparts. This Agreement may be executed in any number of counterparts, each of which shall constitute an original document, but all of which together shall be deemed one instrument.