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These terms and conditions (these “API Terms”) govern your access to and use of any application programming interface or email integration system and any related documentation (collectively, the “API”) that Qualia Labs, Inc. (together with our affiliates, “Qualia”, “us”, “we” or “our”) may provide or make available to you in order to allow you to integrate your service, platform, system or application (collectively, “Service”) with any applicable Qualia (or Qualia affiliate) proprietary software (collectively, regardless of whether referred to by Qualia as Qualia Platform, Connect, Resware or otherwise, the “Qualia Platform”) in the support of our clients (each, an “End User”). By accepting these API Terms, either (i) by clicking a box (or otherwise) indicating your acceptance; (ii) by your signature below; or (iii) by accessing or using the API, you agree to the terms and conditions contained herein and acknowledge that these API Terms supersede any prior or contemporaneous terms and conditions with respect to the subject matter hereof, including any terms or conditions you may provide, and any such additional or different terms or conditions shall have no force or effect. You hereby consent to receiving any notices and communications from us electronically in connection with these API Terms.
2.1 API License. Subject to the terms of these API Terms, we grant you a limited, non-exclusive, non-transferable, non- sublicensable license while these API Terms are in effect to access and use the API solely for the purpose and to the extent reasonably necessary to integrate your Service with the Qualia Platform to enable the proper and secure submission and delivery of orders to applicable End Users via such integration.
2.3 Restrictions. You shall not, and shall not permit any other Person to, access or use the API except as expressly authorized in these API Terms. For purposes of clarity and without limiting the generality of the foregoing, you shall ensure that any Person whom you permit to access or use the API (or for whose benefit you access or use the API) expressly agrees to these API Terms, and you shall not, nor permit any other Person to: (i) copy, modify, or create derivative works or improvements of the API or any software or other materials incorporated into or integrated with the API or otherwise provided or made available to you by us (collectively, including the API, "API Materials"), other than making and using a reasonable number of copies of the installed software of the API Materials, as applicable, solely as reasonably necessary for testing or redundancy purposes; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any API Materials to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the API Materials, in whole or in part; (iv) bypass or breach any security device or protection used by the API or access or use the API other than by an End User through the use of his or her own then valid access credentials; (v) input, upload, transmit, or otherwise provide to or through the API or Qualia’s systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, device or program that is designed to (a) prevent, impair or otherwise adversely affect the operation of any computer service, hardware or network, any telecommunications service, equipment or network or any other service or device, (b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, or (c) adversely affect the user experience, including worms, Trojan horses, viruses and other similar devices; (vi) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the API, Qualia’s systems, or Qualia’s provision of services to any third party, in whole or in part; (vii) remove, delete, alter, or obscure any warranties, disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Qualia Platform or any API Materials; (viii) access or use any API Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Qualia customer), or that violates any applicable law; (ix) use any version of any API Materials other than (a) the most current version provided by Qualia to you, or (b) unless otherwise directed by Qualia, a previous version provided by Qualia to you within the prior 12 month period; (x) disparage, or discourage the authorized use of, any Qualia product or service; (xi) encourage, facilitate, or participate in the circumvention of any contemplated or authorized use of any Qualia product or service; (xii) access or use any API Materials for purposes or with the effect of competitive analysis of the API or Qualia’s products or services, the development, provision, or use of a competing software service or product or any other purpose or effect that is to Qualia's detriment or commercial disadvantage; or (xiii) otherwise access or use the API Materials beyond the scope of the authorization granted.
2.4 Third Party Content. The API may contain third party content (such as text, images, videos, audio, or software), which is the sole responsibility of the Person that makes it available. While we may review third party content, we assume no responsibility to determine whether it is illegal, offensive or violates these API Terms or it is subject to third party intellectual property rights and may remove or refuse to display certain content. Unless expressly permitted by the content owner or by applicable law, you will not, and will not permit any Person acting on your behalf or through you to, (i) scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header; (ii) copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense such content to any third party; (iii) misrepresent the source or ownership of such content; or (iv) remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material of such content
2.5 End User Terms. You shall not enable or permit any End User to access or use the Qualia Platform, via or in connection with your Service or your API-enabled integration, in circumvention of any Qualia Platform access procedures or requirements (including any applicable End-User Terms of Service assent requirements), and You shall be liable for any damages that Qualia may suffer as a result of any breach of the foregoing.
3.1 Ownership. As between you and us, we own all right, title and interest, including all intellectual property rights, in and to the API Materials, Qualia Platform, Qualia Marks and any Confidential Information provided hereunder, together with all improvements, enhancements or modifications thereto (including as a result of any suggestion, enhancement request, recommendation, correction or other feedback thereto provided by you, for which we shall have no obligation to you) (collectively, “Qualia Materials”). Except for the express license and limited use rights granted in these API Terms, we do not grant you any right, title or interest in or to any Qualia Materials.
3.2 Confidential Information. For purposes of these API Terms, “Confidential Information” means any information disclosed or made available by us to you, regardless of format or medium, including any financial information, technical and non- technical data, services, products, processes, operations, reports, analyses, test results, technology, specifications, protocols, performance standards, know-how, methodologies, trade secrets, trade practices, marketing plans and materials, strategies, forecasts, research, concepts, ideas, and names, addresses and any other characteristics or identifying information of our existing or potential licensors, suppliers, customers or employees or any information derived from any of the foregoing; provided that such information is either (i) clearly designated as “Confidential” in writing (if communicated in writing) or at the time of disclosure (if disclosed orally or visually) or (ii) of the nature or type, or disclosed under circumstances, which should reasonably be regarded as confidential. Our Confidential Information includes the Qualia Materials and any data or personally identifiable information regarding or associated with End Users who are not acting on your behalf (collectively, “End User Data”). Confidential Information shall not include any information, other than End User Data, which (i) is or becomes available to the public other than as the consequence of a breach of these API Terms; (ii) is actually known to you or in your possession without any limitation on use or disclosure prior to receipt from us; (iii) is rightfully received without confidentiality restrictions from a third party in possession of such information who is not under obligation to us not to disclose the information; or (iv) is independently developed by you without use of or reference to the Confidential Information. The burden of proving the applicability of these exceptions shall be on you.
3.3 Non-Disclosure of Confidential Information. You shall (i) hold in strict confidence and trust all Confidential Information, using the same degree of care that you use to protect the confidentiality of your own confidential information of similar type, and in any event no less than a reasonable degree of care; and (ii) not disclose, sell, rent or otherwise provide or transfer, directly or indirectly, any Confidential Information to any Person without our prior written consent, except that you may disclose Confidential Information to your or your affiliates’ employees, agents, contractors, legal counsel and accountants who need to know such information, only to the extent reasonably necessary, consistent with the obligations of the parties under these API Terms and who are bound by confidentiality obligations no less stringent than those set forth in these API Terms. You may use the Confidential Information only as expressly authorized in these API Terms and not for any other purpose. You shall require any of your employees or representatives who obtain Confidential Information to comply with these API Terms and shall be responsible for any breach of these API Terms by such employees or representatives.
3.4 Compelled Disclosure. Notwithstanding the foregoing, you shall be permitted to disclose Confidential Information pursuant to a court order, government order or any other legal requirement of disclosure, or pursuant to the listing rules of any stock exchange to which such party is subject, in each case if no suitable protective order or equivalent remedy is available; provided that, to the extent permitted, you give us written notice of such court order, government order, legal requirement or listing rule requiring disclosure immediately upon knowledge thereof and allow us a reasonable opportunity to seek to obtain a protective order or other appropriate remedy prior to such disclosure to the extent permitted by law; and further provided that you shall furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally required, and will exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed. Notwithstanding anything to the contrary, if Qualia receives, or if you or any governmental authority requests that Qualia respond to, a validly issued third party subpoena, court order, government regulatory inquiry, or other similar request or legal process for the preservation or production of any data, documents, other materials, or testimony related to these API Terms (or any activities under or in connection with these API Terms), (i) Qualia, in its reasonable discretion, will determine whether, how, and when to respond to (and, as applicable, notify you of) such request; and (ii) you shall reimburse or otherwise compensate Qualia for all costs and expenses (including, without limitation, attorneys’ fees) that Qualia incurs in connection with any of the foregoing (including, without limitation, any associated investigation, collection, preservation, disclosure, or presentation of any such data, documents, other materials, or testimony).
4.1 Termination. You may stop using the API at any time with or without notice; provided, however, that in order to terminate these API Terms, you must provide us with prior written notice and upon termination, cease your use of the API. We reserve the right to terminate these API Terms or discontinue the API or any portion or feature or your access thereto for any reason and at any time without liability or other obligation to you. You shall promptly notify us if at any point you cease providing your Service to applicable End Users.
4.2 Effect of Termination. Upon any termination of these API Terms or the discontinuance or suspension of your access to the API, (i) all rights and licenses granted to you will terminate immediately; (ii) you will immediately stop using the API and Qualia Marks; and (iii) you will immediately delete and destroy any Confidential Information in your possession or control and any cached or stored content that was permitted under Section 2.4 (and, upon our request, certify such destruction in writing, which certification shall include representations that (x) describe the nature and scope of the efforts undertaken to remove/expunge the information and (y) certify that the information is no longer accessible or usable by you).
4.3 Suspension. In addition to any other remedies we may have, in lieu of termination, we may elect to immediately suspend your access in the event of our belief in good faith after reasonable inquiry that you (i) breached any of Section 2, Section 3 or Section 7.2 (Monitoring), or (ii) are engaged in fraudulent, harmful or unlawful activities.
4.4 Surviving Provisions. All provisions of these API Terms that by their nature should survive termination will survive termination, including accrued rights to payment, ownership, confidentiality obligations, warranty disclaimers and limitations of liability.
5.1 Disclaimer of Warranties. THE API AND ALL OTHER MATERIALS AND INFORMATION PROVIDED BY US UNDER THESE API TERMS ARE PROVIDED ON AN “AS IS” AND “AS- AVAILABLE” BASIS WITH NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. FOR THE AVOIDANCE OF DOUBT, WE DO NOT WARRANT THAT THE API WILL FUNCTION WITHOUT INTERRUPTION OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE API.
5.2 Force Majeure. Qualia shall not be responsible or liable for any delay or failure resulting from any events, circumstances or causes beyond Qualia’s reasonable control.
5.3 Excluded Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE NOR ANY OTHER PERSON WHO HAS CONTRIBUTED TO THE DESIGN, DEVELOPMENT OR DEPLOYMENT OF THE API, SHALL BE LIABLE FOR ANY (I) INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES; (II) LOST BUSINESS OR ANTICIPATED SAVINGS, LOST PROFITS, LOST GOODWILL OR DIMINUTION IN VALUE; OR (III) LOST, DAMAGED, CORRUPTED OR INACCURATE DATA, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THE API, QUALIA PLATFORM OR THESE API TERMS, EVEN IF WE HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
5.4 Maximum Liability. To the fullest extent permitted under applicable law, our total liability, if any, for any and all claims arising out of or in connection with providing you access to and use of the API shall not exceed $500 USD.
To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless us and any other Person who has contributed to the design, development or deployment of the API, and our and their respective directors, officers, employees, agents, shareholders, suppliers and consultants, against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from or related to (i) any access or use by, or on behalf or through, you of the API or Qualia Platform other than as expressly authorized in these API Terms; (ii) sales, value-added, use, excise or other taxes, duties, fees, levies or other governmental charges arising from your business transactions; (iii) a violation of any law or regulation governing, or of any intellectual property or other rights by, your goods, services, software or other materials; or (iv) your breach of these API Terms or any unlawful conduct by you or on your behalf or through you.
7.1 Entire Agreement; Amendment. These API Terms are the complete and exclusive agreement between us and you concerning the subject matter of these API Terms and supersedes any and all prior or contemporaneous proposals, agreements, verbal or written, regarding such subject matter. These API Terms may not be modified except in writing, signed by both parties. These API Terms shall take precedence over any additional or different terms and conditions you may provide concerning the subject matter hereof, to which notice of objection is hereby given.
7.2 Monitoring. You acknowledge that (i) we may monitor use of the API to ensure quality, improve our offerings and verify your compliance with these API Terms, and you agree not to interfere with (and you agree to cooperate with) this monitoring, including that you will, as applicable, activate and otherwise fully enable all diagnostic, monitoring, or similar tools or data feeds (as directed by Qualia); (ii) this monitoring may include our accessing and using your Service to identify security issues that could affect us or End Users; and (iii) we may use any technical means to overcome any interference identified by this monitoring.
7.3 Waiver; Severability. The failure to insist upon strict compliance with any of the provisions of these API Terms shall not be deemed a waiver of any such provision, nor shall any waiver or relinquishment of any right or power hereunder, at any one or more times, be deemed a waiver or relinquishment of such right or power at any other time or times. If any provision of these API Terms is, for any reason, finally determined to be invalid, illegal or unenforceable, such provision shall be enforced to the maximum extent legally permissible and such invalidity, illegality, or unenforceability shall not affect any of the remaining provisions of these API Terms.
7.4 Governing Law. These API Terms shall be governed by and construed in accordance with the laws of Texas, excluding its conflict of laws provisions.
7.5 Dispute Resolution. In the event of any controversy or claim arising out of or in connection with these API Terms, or a breach thereof, subject to Section 7.6, the parties agree to use the following procedure. Except as otherwise set forth in these API Terms, the parties shall first attempt to settle the dispute by good faith discussion. The parties consent and submit to the exclusive jurisdiction and venue over any claim, action, suit, or other legal proceeding that may arise out of or in connection with these API Terms in the courts located in Travis County, Texas.
7.6 Equitable Relief. You acknowledge that any breach of Section 2 or Section 3 may irreparably harm us, that the damages suffered by us as a result of such breach will be difficult to ascertain, and that we may not have an adequate remedy at law for such breach. You agree and consent that in the event of such actual or threatened breach, we shall be entitled, at any time without posting bond, in addition to all other rights and remedies to which we may be entitled, to obtain injunctive or other equitable relief in any court of competent jurisdiction.
7.7 Assignment. Neither party may assign its rights or obligations under these API Terms without the prior written consent of the other party; provided, however, that Qualia may (i) assign any rights or obligations hereunder to an affiliate; or (ii) assign these API Terms in their entirety in connection with a merger, acquisition, or similar transaction.