APIMETRICS API TOOL
This Agreement is between the entity entering this Agreement (“Subscriber”) and APImetrics Inc. (“Vendor”) (collectively the “Parties” and each a “Party). Under this Agreement, Subscriber has a limited and revocable right to subscribe to, access and use the Service defined below, as described by and limited by this Agreement.
SUBSCRIBER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY REGISTERING FOR AN ACCOUNT WITH VENDOR. THIS AGREEMENT WILL BE EFFECTIVE ON THE DATE SUBSCRIBER CONFIRMS REGISTRATION OF AN ACCOUNT (“EFFECTIVE DATE”). IF SUBSCRIBER CHOOSES NOT TO COMPLETE THE REGISTRATION PROCESS, SUBSCRIBER IN THAT CASE MAY NOT USE THE SERVICE AND HAS NO RIGHTS UNDER THIS AGREEMENT.
1. Selected Definitions
“Content” means the audio and visual information, documents, software, products, and services contained or made available to Subscriber in the course of using the Service.
“Subscriber Data” means any data, information, or material provided or submitted by Subscriber to the Service in the course of using the Service.
“Initial Term” means the initial one-month period during which Subscriber is obligated to pay for the Service.
“Intellectual Property Rights” means any unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“License Administrator(s)” means those Users designated by Subscriber who are authorized to purchase Licenses by executing written Invoices and to create User accounts and otherwise administer Subscriber’s use of the Service.
“Invoice(s)” means the form evidencing the initial subscription for the Service and any subsequent Invoices submitted online or in written form, specifying, among other things, the number of Licenses and Services contracted for, the applicable fees, and other charges as agreed to between the Parties, each such Invoice to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Invoice, the terms of this Agreement shall prevail except as otherwise stated in this Agreement).
“Online Order Center” means Vendor’s online application that allows the License Administrator, among other things, to add additional Users to the Service.
“Vendor Technology” means all of Vendor’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Subscriber by Vendor in providing the Service.
“Renewal Term(s)” means any Term after the Initial Term.
“Service(s)” means the specific edition of Vendor’s online service identified during the ordering process, developed, operated, and maintained by Vendor, and referred to as the APImetrics API test and monitoring tool, accessible via www.apimetrics.io, to which Subscriber is being granted access under this Agreement, including the Vendor Technology and the Content. The scope of the Services will depend on the level of Service chosen by Subscriber during the registration process. The details of each level of Service are provided to Subscriber as part of the registration process.
“Term(s)” means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Invoices(s). Term includes both the Initial Term and Renewal Term(s).
“User(s)” means Subscriber employees, representatives, consultants, contractors, or agents who are authorized to use the Service and have been supplied user identifications and passwords by Subscriber (or by Vendor at Subscriber’s request).
2. License Grant and Restrictions
a. Vendor hereby grants Subscriber a limited, revocable, nonexclusive, nontransferable, right to use the Service globally to create, store, and run API tests within the bounds of the Service level chosen by Subscriber, solely for Subscriber’s own internal business purposes, subject to the terms and conditions of this Agreement (“License”). All rights not expressly granted to Subscriber are reserved by Vendor and its licensors. Subscriber may not access the Service if Subscriber is a direct competitor of Vendor, except with Vendor’s prior written consent. In addition, Subscriber may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
b. Subscriber shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User Licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
c. Subscriber shall not use the Service to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
d. This Agreement entitles the Subscriber the limited, revocable right to access the Service through the use of a single Subscriber account. One License grants the Subscriber one (1) License Administrator account to access the APImetrics API test and monitoring tool and one (1) sub-License for each User designated by the Subscriber. Subscriber is responsible for conforming all User activities to Subscriber’s obligations and restrictions under this Agreement and is responsible for all User activities related to the Service as if they were Subscriber’s own activities.
e. License Administrator may add Users by updating User information on the User Admin page of the Service. Added User Licenses will be coterminous with the preexisting Term (either Initial Term or Renewal Term).
3. Intellectual Property Ownership
a. Vendor (and its licensors, where applicable) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Vendor Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Subscriber or any other entity relating to the Service. This Agreement is not a sale and does not convey to Subscriber any rights of ownership in or related to the Service, the Vendor Technology or the Intellectual Property Rights owned by Vendor. Vendor’s name, Vendor’s logo, and the product names associated with the Service are trademarks of Vendor or third parties, and no right or license is granted to use them.
4. Subscriber Responsibilities
a. Subscriber is responsible for all activity occurring under Subscriber’s License Administrator and User accounts and shall abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Subscriber’s use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data. Subscriber shall: (i) notify Vendor immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Vendor immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by Subscriber or Subscriber Users; and (iii) not impersonate another Vendor user or provide false identity information to gain access to or use the Service.
5. Account Information and Data
a. Vendor does not own any Subscriber Data but has a license to use it and view it in connection with this Agreement. Subscriber, not Vendor, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data, and Vendor shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Data. In the event this Agreement is terminated (other than by reason of Subscriber’s breach), Vendor will make available to Subscriber a file of the Subscriber Data within 30 days of termination if Subscriber so requests at the time of termination. Vendor reserves the right to withhold, remove, and discard Subscriber Data without notice for any breach, including, without limitation, Subscriber’s non-payment. Upon termination for cause, Subscriber’s right to access or use Subscriber Data immediately ceases, and Vendor shall have no obligation to maintain or forward any Subscriber Data.
6. Third Party Interactions
a. Subscriber recognizes that certain third party providers of ancillary software, hardware, or services may require Subscriber’s agreement to additional or different licenses or other terms prior to Subscriber’s use of or access to such software, hardware or services. Vendor and its licensors shall have no liability, obligation, or responsibility for any such agreement between Subscriber and any such third party.
7. Charges and Payment of Fees
a. Subscriber shall pay all fees or charges to Subscriber’s account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made monthly in advance unless otherwise mutually agreed upon in an Invoice. All payment obligations are non-cancelable and all amounts paid are nonrefundable. Subscriber is responsible for paying the entire fee for the entire Term, whether or not Subscriber uses the Service. Vendor reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 10 days prior notice to Subscriber, which notice may be provided by email. All pricing terms are confidential, and Subscriber agrees not to disclose them to any third party.
b. Vendor charges and collects in advance for use of the Service. Vendor will automatically issue an Invoice to Subscriber at the beginning of each month or as otherwise mutually agreed upon. The renewal charge will be set at Vendor’s discretion. Fees for other services will be charged on an as-quoted basis. Unless otherwise noted, Vendor’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Subscriber shall be responsible for payment of all such taxes, levies, or duties, excluding only U.S. (federal or state) taxes based solely on Vendor’s income.
c. Subscriber agrees to provide Vendor with complete and accurate billing and contact information. This information includes Subscriber’s legal company name, street address, email address, and name and telephone number of an authorized billing contact and License Administrator. Subscriber agrees to update this information within 10 days of any change to it. If the contact information Subscriber has provided is false or fraudulent, Vendor reserves the right to terminate Subscriber’s access to the Service in addition to taking any other legal remedies.
d. If Subscriber believes its bill is incorrect, Subscriber must contact Vendor in writing within 30 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
e. Vendor may contract with a third-party service provider for payment services. In addition to this Agreement, Subscriber will comply with any additional terms required by the third-party payment service provider.
f. This Section 7 may be modified or superseded by a separate agreement between Vendor and Subscriber.
8. Availability and Service Updates
a. Subject to the terms of this Agreement, Vendor will use commercially reasonable efforts to provide access to the Service twenty-four (24) hours a day, seven (7) days a week for use by Subscriber.
b. Vendor reserves the right to update and modify features of the Service at any time without notice.
9. Data Rights and Security
a. Subscriber shall retain full right, title and interest in and to all Subscriber Data entered using the Service, and any and all outputs generated by the Service for Subscriber’s use in its discretion, subject to the limitations set forth in this Agreement. Vendor reserves the right to publish, display, distribute, or otherwise use the results of API tests run by Subscribers registered for a free trial account. Identifying information (e.g. user name, company name, and address) will not be made available at any time to any other Subscriber subscribing to the Service. Subscriber may not use the results of API tests run through the Service to enforce agreements between Subscriber and third parties except with the prior written approval of Vendor.
b. In an effort to provide value to all Subscribers, Vendor and certain third parties it contracts with have the right to use and present Subscriber Data in an aggregated form reflecting combined data from multiple Subscribers for statistical reporting purposes only. Information collected by Vendor may be used for the purpose of identifying industry benchmarks, trends, and evaluating how to improve the Service for the benefit of all Subscribers. Presentation of aggregated information will not reveal data that links identifying information for any Subscriber (e.g. user name, company name, and address) for specific Subscribers.
10. Nonpayment and Suspension
a. In addition to any other rights granted to Vendor herein, Vendor reserves the right to suspend or terminate this Agreement and Subscriber’s access to the Service if Subscriber’s account has an outstanding subscription balance beyond the payment terms shown on the Subscriber’s Invoice. Delinquent payments and accounts are subject to interest of 1.0 percent per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for Service during any period of suspension. If Subscriber or Vendor initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on Subscriber’s account. Subscriber agrees that Vendor may bill Subscriber for such unpaid fees.
b. Vendor reserves the right to impose a reconnection fee in the event Subscriber is suspended and thereafter requests access to the Service. Subscriber agrees and acknowledges that Vendor has no obligation to retain Subscriber Data and that such Subscriber Data may be irretrievably deleted if Subscriber’s account is 30 days or more past due.
11. Termination upon Expiration/Reduction in Number of Licenses
a. The Initial Term will be one month or as otherwise mutually agreed upon in an Invoice, commencing on the date of the Vendor’s Invoice.
b. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one-month (or other length of time indicated in the Invoice) Renewal Terms at Vendor’s then current fees. Either Party may terminate this Agreement or reduce the number of Licenses, effective only upon the expiration of the then current Term, by notifying the other Party in writing at least ten (10) days prior to the expiration of the Term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of Subscriber’s breach), Vendor will make available to Subscriber a file of the Subscriber Data within 30 days of termination if Subscriber so requests at the time of termination. Subscriber agrees and acknowledges that Vendor has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, more than 30 days after termination.
12. Termination for Cause.
a. Any breach of Subscriber’s payment obligations or unauthorized use of the Vendor Technology or Service will be deemed a material breach of this Agreement. Vendor, in its sole discretion, may terminate Subscriber’s password, account or use of the Service if Subscriber breaches or otherwise fail to comply with this Agreement. In addition, Vendor may terminate a free account at any time in its sole discretion. Subscriber agrees and acknowledges that Vendor has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, if Subscriber has materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 10 days of notice of such breach.
13. Representations and Warranties.
a. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement. Vendor represents and warrants that it will provide the Service in a manner substantially in accordance with the online Vendor help documentation under normal use and circumstances. Subscriber represents and warrants that Subscriber has not falsely identified Subscriber nor provided any false information to gain access to the Service and that Subscriber’s billing information is correct.
14. Mutual Indemnification.
a. Subscriber shall indemnify and hold Vendor, its licensors and each such entity’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Subscriber Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Subscriber of Subscriber’s representations and warranties; or (iii) a claim arising from the breach by Subscriber or Subscriber Users of this Agreement.
b. Vendor shall indemnify and hold Subscriber and Subscriber’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) arising out of or in connection with a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that Subscriber (a) promptly gives written notice of the claim to Vendor; (b) gives Vendor sole control of the defense and settlement of the claim; (c) provides to Vendor all available information and assistance; and (d) has not compromised or settled such claim. Vendor shall have no indemnification obligation, and Subscriber shall indemnify Vendor pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Subscriber products, service, hardware or business process(s).
15. Disclaimer of Warranties
A. VENDOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. VENDOR AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (B) THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY DATA STORED OR GENERATED THROUGH THE SERVICE WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO SUBSCRIBER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY VENDOR AND ITS LICENSORS.
16. Internet Delays
A. VENDOR’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, OUTAGES, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Limitation of Liability
A. IN NO EVENT SHALL VENDOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY REASON (INCLUDING INDEMNIFICATION) EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM SUBSCRIBER DURING THE INITIAL TERM. IN NO EVENT SHALL VENDOR AND/OR ITS LICENSORS BE LIABLE TO SUBSCRIBER OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE OR AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF VENDOR OR VENDOR’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
a. During the Term of this Agreement, Vendor may provide non-public information (“Confidential Information”) to Subscriber. Subscriber will not disclose the Confidential Information publically or use it for purposes unrelated to this Agreement. Confidential Information includes but is not limited to this Agreement and any associated pricing terms. Information provided by Vendor is presumed to be Confidential Information unless Vendor states otherwise.
a. Vendor may give notice by means of a general notice on the Service, email to the Subscriber address on record in Vendor’s account information, or by written communication sent by first class mail or pre-paid post to Subscriber address on record in Vendor’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). Subscriber will give notices to Vendor (such notice shall be deemed given when received by Vendor) by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Vendor at the following address:
1235 17th Ave E
Seattle Washington 98112
20. Modification to Terms
a. Vendor reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. Subscriber is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Subscriber’s consent to such changes.
21. Assignment; Change in Control
a. This Agreement may not be assigned by Subscriber without the prior written approval of Vendor. An unapproved assignment is void. Vendor may assign this Agreement to a third party on written notice to Subscriber. Any actual or proposed change in control of Subscriber that results or would result in a direct competitor of Vendor directly or indirectly owning or controlling 50 percent or more of Subscriber shall entitle Vendor to terminate this Agreement for cause immediately upon written notice.
23. Limitation of Remedies and Damages
a. Subscriber’s sole remedy for a breach of this Agreement is the correction or replacement of the Service. The decision to repair or replace the Service shall be solely at the discretion of Vendor. Vendor reserves the right to substitute a functionally equivalent copy of the Service as a replacement. If Vendor is unable to provide a suitable replacement or substitute Service or corrections to the Service within thirty (30) days of Service’ failure to perform, Subscriber’s sole alternate remedy shall be a refund for the days or months that the Subscriber was charged fees for access to the Service while it was not functioning properly. Any claim of Subscriber under this section must be made within thirty (30) days after the event giving rise to the claim.
24. Governing Law, Jurisdiction, and Dispute Resolution
a. This Agreement is governed by the laws of the State of Washington, without regard to Washington’s conflict or choice of law provisions. Venue for any disputes will be subject to the exclusive jurisdiction of the federal and state courts in King County, Washington.
b. In the event that at any time during the term of this Agreement a disagreement, dispute, controversy or claim should arise out of, or relating to, the interpretation, performance, breach, or invalidity of this Agreement, the parties will attempt in good faith to resolve their differences. Any dispute which is not resolvable by the parties shall be referred to binding arbitration in accordance with the then applicable rules of the American Arbitration Association and judgment on the award may be entered in any court having jurisdiction.