This API License Agreement (this "Agreement") is a contract between you, as Licensee ("You" or "Licensee") and and applies to your use of the XCritical API service (the "Service"). IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT USE OR ACCESS OUR SERVICES. INSTEAD, IF YOU WISH TO MODIFY THESE TERMS PRIOR TO USING OR ACCESSING OUR SERVICES, PLEASE CONTACT US AT SUPPORT@xcritical.com.
1. API License. Subject to the terms and conditions of this Agreement, XCritical hereby grants to you a non-exclusive, non-transferable, non-sublicense-able, limited license to use the Application Programming Interface ("API License") solely in accordance with this Agreement. You may do the following under this API License:
Any combination of the foregoing bulleted subsections above are "Permitted Use." Permitted Use is subject to all restrictions identified herein. We will provide to you Permission to use the API (the "Permission"). The Permission may be immediately revoked or terminated by XCritical, including your use of the Content or Database in any way not expressly permitted or granted under this Agreement. A "Third Party Service Provider" is any third party service provider who is reasonably needed to undertake the Permitted Use of this Agreement and who is subject to all restrictions herein, including confidentiality provisions at least as restrictive as those set forth in Section 7 ("Confidential Information").
2. General License Conditions and Restrictions. You shall neither use the Database or the API Program in any way not expressly permitted or granted under this Agreement, nor use any alternative means such as robots, spiders, scraping or other technology to access, query, or use www.xcritical.com, or any other web site owned or operated by XCritical or any of its affiliates or subsidiaries (the "XCritical Site"), Database, Content, or API Program to obtain any information, other than as provided by XCritical to you pursuant to this Agreement. You may not distribute, facilitate, enable or allow access or linking to the XCritical Content or Database from any location or source other than your Site. You shall not permit or enable third parties to copy or obtain XCritical Content from your Site in any unauthorized manner including, but not limited to, the use of using robots, spiders, scraping or any other technology. Following expiration or termination of this Agreement, you shall not use (or facilitate use of) any alternative means such as robots, spiders, scraping or other technology to access, query, or use the XCritical Site, Database, Content, or API Program to obtain any information. We may deprecate or terminate the availability or performance of the API at any time and for any reason.
3. Restrictions and Conditions of Use. You agree that you shall not use the API Program, Database, or XCritical Content, or permit same to be used in any manner, whether directly or indirectly, that would (i) permit the disclosure of the API Program, Database, or the XCritical Content (other than XCritical Content authorized by this Agreement to be Publicly Displayed as defined hereunder), to, or the use of the API Program, Database, or the XCritical Content by, anyone other than your employees or Third Party Service Providers, or (ii) enable the API Program to be used in any location other than your Site (unless XCritical otherwise has agreed in writing in advance). Specific Prohibitions: Notwithstanding anything contrary in this Agreement, you are specifically prohibited from doing any of the following:
4. Certification. Your use of the XCritical Content and participation in the API Program may be dependent upon the certification by XCritical or an independent third party designated by XCritical of your technology in accordance with the security and stability guidelines and the display and use of the API Program and XCritical Content in accordance with this Agreement ("Certification"). You shall be responsible for all costs associated with Certification and any modification necessary to meet the Certification criteria. Future modifications of your Site, use or display of the XCritical Content or API Program are subject to re-Certification. Failure by you to obtain and maintain Certification is cause for immediate termination of this Agreement.
5. Display of XCritical Content. You may only display the XCritical Content in accordance with the following guidelines:
6. Prohibited Functions. Unless otherwise stated, all new XCritical User registrations on items shall take place on the XCritical Site and cannot be done through the API. In addition, all XCritical User preferences, registration preferences, and privacy preferences shall be set by the XCritical User directly on the XCritical Site.
7. Content and Intellectual Property Licenses.
7.1. Content and IP Ownership. Except as otherwise provided in this Agreement, as between XCritical and You, XCritical retains all rights, title and interest in and to all intellectual property rights (including without limitation all patent, trademark, copyright, trade dress, trade secrets, database rights and all other intellectual property rights) embodied in or associated with the API Program, XCritical Content, XCritical Site and any and all XCritical services, technology and any content created or derived there from. There are no implied licenses under this Agreement, and any rights not expressly granted to you hereunder are reserved by XCritical or its suppliers. You shall not take any action inconsistent with XCritical's ownership of the API Program, and/or XCritical Content. You shall not exceed the scope of the licenses granted hereunder.
7.2. Limits on Sublicensing. All license rights (under any applicable intellectual property right) granted herein are not sublicenseable, transferable or assignable, except as otherwise provided herein.
7.3. Uptime. XCritical does not guarantee that the XCritical Site or the XCritical Content shall be available twenty-four hours a day.
8. Term and Termination.
8.1. No Notice. XCritical may terminate this Agreement at any time upon advance notice for any reason and without notice to you.
8.2. Survival. The following Sections of the Agreement shall survive any termination of this Agreement: the following sections under Section 1.2 ("General License Conditions and Restrictions"), Section 1.3 ("Restrictions and Conditions of Use"), Section 2 ("Content and Intellectual Property Licenses"), Section 3.2 ("Survival"), Section 6 ("Representations and Warranties"), Section 7 ("Confidential Information"), Section 8 ("Limitation of Liability"), Section 9 ("Indemnification"), and Section 10 ("General").
8.3. Effects of Termination. Upon termination of this Agreement, you shall no longer use the Permission and all licenses granted hereunder shall terminate unless such licenses are expressly stated as surviving; provided further, you shall provide proof to XCritical of the destruction of any XCritical Content or Customer Information within three (3) days of such expiration or termination.
9. Security and Stability.
You acknowledge that it is in the best interests of both parties that XCritical maintains a secure and stable environment; to that end, XCritical reserves the right to change the method of access to the API Program, Database and/or XCritical Content at any time. You also agree that, in the event of degradation or instability of XCritical's system or an emergency, XCritical may, in its sole discretion, temporarily suspend your access to the API Program, Database and/or XCritical Content under this Agreement in order to minimize threats to and protect the operational stability and security of the XCritical system.
10. Disclaimer of XCritical Warranties.
ACCESS TO THE DATABASE AND YOUR USE OF THE API IS PROVIDED HEREUNDER ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY STATED HEREIN, XCritical DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. XCritical DOES NOT REPRESENT OR WARRANT THAT THE XCritical SITE SHALL OPERATE SECURELY OR WITHOUT INTERRUPTION. You acknowledge that you have not entered into this Agreement in reliance upon any warranty or representation.
11. Representations and Warranties.
You represent and warrant that you shall at all times comply with all laws and regulations applicable to your products and/or services, related promotional activities and its performance under this Agreement.
12. Confidential Information.
12.1. Confidential Information. Confidential Information Defined. XCritical's "Confidential Information" is defined as any confidential or proprietary information which is disclosed to you in a writing marked "Confidential" or, if disclosed orally, is identified as confidential at the time of disclosure and is subsequently reduced to a writing marked "Confidential" and delivered to the other party within ten (10) days of disclosure, or disclosed through the API. The terms of this Agreement, XCritical Content, Database, Services, Technology, the API Program, your User ID, and Customer Information (including user IDs, passwords, and any account information) shall be deemed Confidential Information regardless of whether marked "Confidential."
12.2. Licensee Obligations. You shall hold XCritical's Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use XCritical's Confidential Information for any purpose other than as required to perform under this Agreement. Where Confidential Information is required to be disclosed by a court, government agency, regulatory requirement, or similar disclosure requirement, you shall immediately notify XCritical upon learning of the existence or likely existence of such requirement and shall use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Confidential Information. Notwithstanding any contrary provision in Section 15 ("Notice"), notification to XCritical under this Section 7.2 should be provided by personal delivery on a same day. Your obligations hereunder shall survive the termination of this Agreement for a period of five (5) years.
12.3. Return of Confidential Information Upon Termination. Upon termination of this Agreement, you shall return to XCritical within three (3) days all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts thereof.
12.4. Competitive or Similar Materials. Notwithstanding the foregoing, in no event shall XCritical be precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for third parties, as well as marketing and/or distributing, materials which are competitive with your products and/or services (collectively, "your Products"), irrespective of their similarity to current Products or your Products that may be developed hereafter.
13. Limitation of Liability.
XCritical SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER FORM OF ACTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF XCritical IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You shall indemnify XCritical against any and all claims, losses, liabilities, costs and expenses, including reasonable attorneys' fees (collectively, "Claims") which XCritical may incur as a result of any third party actions arising from or relating to: (1) Your or Third Party Service Provider's use of the API Program, the XCritical Content, Database, Services or Technology in excess of the rights granted hereunder or (2) Content, Database, Technology, or Services provided by You or others on your behalf.
15.1. Governing Law; Venue. This Agreement shall be construed in accordance with and governed exclusively by the laws of Luxembourg applicable to agreements made among Luxembourg residents and to be performed wholly within such jurisdiction, regardless of such parties' actual domiciles. You agree that any cause of action arising under this Agreement shall be brought exclusively in a court in Luxembourg.
You shall not make any public statement regarding the terms of this Agreement, any aspect thereof, or the API Program without XCritical's prior written approval which may be withheld at its sole discretion.
17. Independent Contractors.
This Agreement does not create, and nothing contained in this Agreement shall be deemed to establish, a joint venture between the parties, or the relationship of employer-employee, partners, principal-agent, a fiduciary relationship or the like.
You may not assign rights nor delegate duties hereunder without XCritical's prior written consent, which may be withheld at its sole discretion.
If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way.
Any notice under this Agreement shall be in writing and delivered by confirmed e- mail and shall be deemed given upon confirmation of receipt of e mail. Notices shall be sent to a party at its address set forth above or such other address as that party may specify in writing pursuant to this Section 15, or to the email address you provide ("Notice").
21. Entire Agreement; Waiver.
This Agreement sets forth the entire understanding and agreement of the parties regarding the API Program, and supersedes any and all oral or written agreements or understandings between the parties, as to the API Program, except to the extent that it incorporates XCritical's User Agreement, Privacy and Acceptable Use Policies as described herein. The waiver of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach.