This API Guide License Agreement (this “Agreement”) is a binding contract between you (“you” or “your”) and Nexsys Technologies LLC. (“Company,” “we” or “us”). This Agreement governs your access to and use of the Clear Sign Partner API Guide.
BY ACCESSING OR USING THE CLEAR SIGN PARTNER API GUIDE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE API GUIDE OR THE API.
Subject to and conditioned on your compliance with all terms and conditions set forth in this Agreement, we hereby grant you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the term of the Agreement to (a) access and use the API Documentation solely for your internal business purposes in developing Your Applications that will communicate and interoperate with any Company Offering; and (b) display certain Company Marks in compliance with usage guidelines that we may specify from time to time solely in connection with the use of the API Documentation, the API and the Applications and not in connection with the advertising, promotion, distribution or sale of any other products or services. You acknowledge that there are no implied licenses granted under this Agreement. We reserve all rights that are not expressly granted. You may not use the API Documentation, the API or any Company Mark for any other purpose without the prior written consent of the Company. You acknowledge that access to the API Documentation does not guarantee access to the API, that the Company makes no guarantee of such access and that Nexsys will not be held liable for any costs whatsoever that are incurred by you, including but not limited to development costs, technology costs, business costs or damages associated with use of the API documentation, or as a result of denial of access to the API. You must obtain the expressed written permission of the Company to use and access the API. You may not share your access with any third party, must keep your login information for access to the API secure and must only use the prescribed manner of access designated by the Company as your sole means of accessing the API. Your access to the API may be revoked at any time by the Company, for any reason, as determined appropriate in the Company’s sole discretion.
Except as expressly authorized under this Agreement, you may not:
You will comply with all terms and conditions of this Agreement, all applicable laws, rules and regulations and all guidelines, standards and requirements. In addition, you will not use the API Documentation or the API (if granted access) in connection with or to promote any products, services or materials that constitute, promote or are used primarily for the purpose of dealing in 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 or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, stolen products and items used for theft, hazardous materials or any illegal activities.
This Agreement does not entitle you to any support in regard to the API Documentation or your ensuing use of the Documentation for your internal business purposes. You acknowledge that we may update or modify the API Documentation from time to time and at our sole discretion (in each instance, an “Update”), and may require you to obtain and use the most recent version of the API Documentation. Updates may adversely affect how Your Applications communicate with the Company Offering. You are solely responsible to make any changes to Your Applications that are required for integration as a result of such Updates at your sole cost and expense. Your continued use of the API Documentation following an Update constitutes binding acceptance of any and all available Updates.
You acknowledge and agree that no license fees or other payments will be due under this Agreement in exchange for the rights granted under this Agreement. You acknowledge and agree that this fee arrangement is made in consideration of the mutual covenants set forth in this agreement, including, without limitation, the disclaimers, exclusions and limitations of liability set forth herein. Notwithstanding the foregoing, we reserve the right to start charging for access to and use of the API Documentation and API at any time.
You acknowledge that, as between you and us, (a) we own all right, title and interest, including all intellectual property rights, in and to the API Documentation, the API and any Company Marks and (b) you own all right, title and interest, including all intellectual property rights, in and to Your Applications, excluding the aforementioned rights in Section 7(a). You will use commercially reasonable efforts to safeguard the API Documentation and Company Marks (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. You will promptly notify us if you become aware of any infringement of any intellectual property rights in the API Documentation and Company Marks and will fully cooperate with us, in any legal action taken by us to enforce our intellectual property rights. If you or any of your employees, contractors or agents sends or transmits any communications or materials to us by mail, email, telephone or otherwise, suggesting or recommending changes to the API Documentation or the API, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), all such Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and on behalf of your employees, contractors or agents, all right, title and interest in, and we are free to use, without any attribution or compensation to you or any third party, any ideas, know-how, concepts, techniques or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
THE API DOCUMENTATION IS PROVIDED “AS IS” AND THE COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE API GUIDE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
You agree to indemnify, defend and hold harmless the Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) your use or misuse of the API GUIDE, (b) your breach of this Agreement and (c) your Applications, including any end user’s use thereof. In the event we seek indemnification or defense from you under this provision, we will promptly notify you in writing of the claim(s) brought against us for which we seek indemnification or defense. We reserve the right, at our option and at our sole discretion, to assume full control of the defense of claims with legal counsel of our choice. You may not enter into any third-party agreement that would, in any manner whatsoever, constitute an admission of fault by us or bind us in any manner, without our prior written consent. In the event we assume control of the defense of such claim, we will not settle any such claim requiring payment from you without your prior written approval.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (a) ANY 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 API; OR (b) ANY DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
The term of this Agreement commences when you access the API Documentation and will continue in effect until terminated as set forth in this Section. We may immediately terminate or suspend this Agreement, any rights granted herein, and/or your licenses under this Agreement, at our sole discretion at any time and for any reason without notice to you or may revoke access to the API Guide. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. You may terminate this Agreement at any time by ceasing your access to and use of the API Guide. Upon termination of this Agreement for any reason all licenses and rights granted to you under this Agreement will also terminate and you must cease using, then destroy and permanently erase from all devices and systems you directly or indirectly control all copies of the API Guide. Any terms that by their nature are intended to continue beyond the termination or expiration of this Agreement will survive termination. Termination will not limit any of the Company’s rights or remedies at law or in equity.
The API Guide and/or API may be subject to U.S. export control laws, including the Export Control Reform Act and its associated regulations. You will not, directly or indirectly, export, re-export or release the API Guide to, or make the API Guide or API accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You will comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the API Guide or API available outside the U.S.
The API Guide and API are individually a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the U.S. Government or any contractor thereof, you receive only those rights with respect to the API Guide and API as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government licensees and their contractors.
You acknowledge and agree that the Company has the right, at its sole discretion, to modify this Agreement from time to time, with or without notice to you. You will be responsible for monitoring and checking for updates and reviewing and becoming familiar with any such modifications.
This agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice of conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Except as otherwise set forth herein, any legal suit, action or proceeding arising out of or related to this agreement or the licenses granted hereunder will be instituted exclusively in the courts of the State of Michigan, in each case located in the city of Detroit and the County of Wayne, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to our corporate headquarters address available at www.Nexsystech.com and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the API Documentation. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality or unenforceability of any provision herein does not affect any other provision herein or the validity, legality or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches. This Agreement is personal to you and may not be assigned or transferred for any reason whatsoever without our prior written consent and any action or conduct in violation of the foregoing will be void and without effect. We expressly reserve the right to assign this Agreement and to delegate any of its obligations hereunder.