1.1 The Service
IM’s service (“Service”) enables users to passively collect and analyze certain data (as further described below) via IM’s application programming interfaces, with related tools and documentation (collectively, the “API”) that developers can use within their software applications (each, a “Application”), and a software development kit (“SDK”, together with the API, the “IM Offerings”)).
(a) Accounts. In order to use certain features of the Service, Developer must register for an account with IM (an “Account”).
(b) Registration Information. In order to use certain features of the Service, Developer must register for an account with IM (an “Account”). Developer represents and warrants that: (i) all required registration information it submits is truthful and accurate; and (ii) Developer will maintain the accuracy of such information. IM may suspend or terminate Developer’s Account if Developer breaches any of the terms of this Agreement. Developer is responsible for maintaining the confidentiality of Developer’s Account login information and is fully responsible for all activities that occur under Developer’s Account. Developer agrees to immediately notify IM of any unauthorized use, or suspected unauthorized use, of Developer’s Account, or any other breach of security. IM will not be liable for any loss or damage arising from Developer’s failure to comply with the above requirements.
2. Licences Uses And Restrictions
2.1 License Grant
Subject to Developer’s compliance with the terms and conditions of this Agreement, IM grants Developer a limited, non-exclusive, non-assignable, non-transferable license to: (i) reproduce and use the SDK internally for the purpose of developing an Application owned and operated by Developer (“Developer App”); (ii) internally use and access the API solely as necessary to develop, maintain and support each Developer App in accordance with the documentation or specifications included in the API; (iii) access and display the Developer App to the appropriate end users of the Developer App; and (iv) access and use the content available via the Services solely for your internal business purposes.
Developer agrees that it will not, and will not assist, permit, authorize, or enable others to do any of the following restrictions without IM’s express written consent: (i) reverse engineer or decompile the IM Offerings or any component thereof, or attempt to create a substitute or similar service through use of or access to the IM Offerings, unless this is expressly permitted or required by applicable law; (ii) copy, rent, lease, sell, transfer, assign, sublicense, or alter any part of the IM Offerings; (iii) use IM’s name to endorse or promote any product, including a product derived from the IM Offerings; (iv) remove any legal, copyright, trademark, or other proprietary rights notices contained in or on the IM Offerings; (v) use the Service in a manner that, as determined by IM, in IM’s sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the IM Offerings documentation; (vi) use any robot, spider, site search/retrieval application, or other device to collect information about users for any unauthorized purpose; or (vii) use the IM Offerings in any service bureau or time-sharing arrangement.
3. Developer Applications
3.1 App Policy
Developer is solely responsible and liable for Developer Apps, and for supporting each Developer App. Developer represents and warrants that each Developer App will not: (i) violate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) violate any laws or regulations (including any privacy laws or any self-regulatory programs to which Developer publicly adheres) or any obligations or restrictions imposed by any third party; (iii) be harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, or patently offensive, or promote racism, bigotry, hatred, or physical harm of any kind against any group or individual, or be otherwise objectionable; (iv) be harmful to minors in any way; (v) contain any computer viruses, worms, or any software intended to damage or alter a computer system or data; (vi) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, text messages, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; or (vii) offer or promote services that may be damaging to, disparaging of, or otherwise detrimental to IM or its licensors, licensees, affiliates and partners.
3.2 Developer App Terms of Service
This Agreement governs the relationship between IM and Developer, and does not govern the relationship between Developer and the End Users. Developer agrees that each Developer App made available to End Users will have a terms of service that disclaims any of IM’s liability and damages (including all direct, consequential, incidental, indirect, special and punitive damages) for the End User’s use or inability to use the Developer App.
As between Developer and IM, IM owns all right, title and interest in and to the IM Offerings and Services. Except for the license granted in Section 2.1 (License Grant), this Agreement grants Developer no right, title, or interest in any intellectual property owned or licensed by us, including the IM Offerings. Developer agrees to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices and restrictions contained in this Agreement.
IM may release subsequent versions of the IM Offerings and require Developer to use the most recent version. Developer’s continued use of the IM Offerings on any Developer App after such a release will be deemed Developer’s acceptance of the modifications. IM may also cease providing any prior version of the IM Offerings at any time, at which point such version will be deprecated.
IM may provide Developer with support, upgrades, or modifications for the IM Offerings in its sole discretion. In the event IM provides any support, it will be considered part of the IM Offerings and Service for purposes of Section 8 (Disclaimer and Liability) and Section 9 (Indemnification) below, and IM may terminate the provision of such support or modifications to Developer at any time without notice or liability to Developer. Developer understands and agrees that it is solely responsible for providing user support and any other technical assistance for Developer App.
6. Fees and Payment Terms
IM currently does not charge any fees in connection with the use of the Services; provided, however, IM may, in its sole discretion charge fees in connection with certain services. Developer agrees to pay all fees or charges to its Account in accordance with the applicable fees, charges and billing terms in effect at the time a fee or charge is due and payable. IM reserves the right at any time to change its prices and billing methods, upon no less than thirty (30) days notice to Developer; provided, however, that in the event Developer does not agree to any such revised prices or billing methods, Developer’s sole and exclusive remedy is to cease any further use of the IM Offerings prior the expiration of the thirty day period.
IM’s fees are net of any applicable sales or use tax (“Sales Tax”). If any Services, or payment for any Services, under this Agreement are subject to Sales Tax in any jurisdiction and Developer has not remitted the applicable Sales Tax to IM, Developer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority.
7. Term and Termination
This Agreement shall commence as of the Effective Date and continue until terminated in accordance with the terms of this Agreement.
7.2 Suspension and Termination
IM may change, suspend, or discontinue the availability or any functionality of the IM Offerings, or any aspect of Developer’s access to the IM Offerings, at any time without notice to Developer and without incurring any liability to Developer. IM may also impose limits on certain features and services or restrict Developer’s access to part or all of the IM Offerings without notice to Developer and without incurring any liability to Developer. Furthermore, IM may limit, suspend, or terminate Developer’s use of the IM Offerings (and Developer’s rights under this Agreement) at any time. In addition, this Agreement will terminate automatically and without notice immediately upon any breach of the terms of this Agreement by Developer. Developer may terminate this Agreement for any reason or no reason at all, at its convenience, by ceasing Developer’s use of the IM Offerings.
7.3 Effect on Termination
Upon termination of this Agreement: (i) all rights and licenses granted will terminate immediately; and (ii) any and all payment obligations, if any, will be due. Neither party will be liable to the other party for damages of any sort resulting solely from the termination of this Agreement.
Sections 4.1 (Ownership), 6 (Fees and Payment Terms), 7.4 (Survival), and 9 (Disclaimer and Liability) through 12 (General) will survive any termination of this Agreement.
8.1 User Data
Developer may use any outputs or results obtained from the Service (“Outputs”) during the term of this Agreement, solely for Developer’s internal business purposes, including the support, maintenance and delivery of the Developer App. Within thirty (30) days of the termination of this Agreement, Developer will permanently destroy or erase all Outputs.
9. Disclaimer and Liability
THE IM Offerings ARE PROVIDED “AS IS,” “WHERE IS,” “WITH ALL FAULTS” AND WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. IM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/ NON-INFRINGEMENT. SOME ASPECTS OF THE IM Offerings ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER. IM DOES NOT REPRESENT, WARRANT, OR MAKE ANY CONDITION THAT THE IM Offerings are FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. IM IS NOT RESPONSIBLE FOR ANY CONTENT OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE API OR THE SERVICE, ALL OF WHICH IS OBTAINED AT DEVELOPER’S OWN DISCRETION AND RISK. ADDITIONALLY, IM DOES NOT GUARANTEE THAT ANY CONTENT WILL BE MADE AVAILABLE ON THE SERVVICE. DEVELOPER’S USE OF THE IM Offerings IS AT ITS OWN DISCRETION AND RISK, AND DEVELOPER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF THE IM Offerings INCLUDING, BUT NOT LIMITED TO, FOR ANY DAMAGE TO DEVELOPER’S COMPUTER SYSTEM OR LOSS OF DATA. EACH END USER’S RELATIONSHIP WITH ANY THIRD-PARTY ACCOUNTS THAT ARE ACCESSED BY THE SERVICE IS GOVERNED BY THE AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND IM SHALL NOT BE LIABLE FOR ANY FEATURES OR FUNCTIONS THAT ARE UNAVAILABLE TO THE EXTENT IM IS PROHIBITED OR LIMITED IN ACCESSING SUCH THIRD-PARTY ACCOUNTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY DEVELOPER FROM IM OR THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE USER AGREEMENT.
9.2 Limitation of Liability
IM WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO DEVELOPER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES RELATED TO THIS AGREEMENT OR THE IM Offerings. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER DEVELOPER WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. IN NO EVENT WILL IM’S AGGREGATE LIABILITY UNDER THIS AGREEMENT OR RELATED TO THE IM Offerings EXCEED THE GREATER OF: (A) THE AMOUNTS PAID BY DEVELOPER TO IM DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDEING THE ACT(S) GIVING RISE TO LIABILITY HEREUNDER; OR (B) $100. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE REGARD FOR THE BUSINESS RISK ASSOCIATED WITH THE ARRANGEMENTS DESCRIBED IN THIS AGREEMENT.
Developer will defend, indemnify and hold harmless IM and its affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any third-party claim arising from or in any way related to Developer App, Developer’s use of the IM Offerings in violation of this Agreement, or Developer’s breach of any obligation herein, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.
11.1 Entire Agreement; Amendment
This Agreement constitutes the entire agreement between Developer and IM and governs Developer’s use of the IM Offerings.
11.2 Relationship of Parties
The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the Parties. Neither party is the representative of the other party for any purpose and neither party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.
11.3 Governing Law
This Agreement will be governed in accordance with the laws of the State of New York without reference to its conflicts of law principles. The Parties agree that the exclusive jurisdiction of any actions arising out of this Agreement will be in the state or federal courts, as applicable, located in New York, New York.
If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
Neither party may assign this Agreement or any of its rights or obligations hereunder, to a third party without the other party’s written consent, except that IM may assign this Agreement without such consent as a consequence of a merger, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains, or to any affiliate of IM in connection with a corporate restructuring. Any assignment in violation of the foregoing is null and void. This Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns.
Failure to enforce or a waiver by either party of one default or breach of the other party will not be considered to be a waiver of any subsequent default or breach.
All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the Parties’ respective addresses set forth below. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier.
11.7 Force Majeure
Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.
11.8 Government End Users
The IM Offerings are “commercial computer software” and any associated documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, or disclosure of the IM Offerings or such documentation by the United States Government will be governed solely by the terms of this Agreement.
All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A party’s breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages.