APPLICATION PROGRAMMING INTERFACE LICENSE AGREEMENT
This Application Programming Interface License Agreement (the "Agreement") is made by and between you (“Licensee”) and FAME. (“FAME”). Upon clicking on the “accept” button (the “Effective Date”), you agree to be and will be bound by the terms of this Agreement as a condition of your license. If you do not agree to the terms of this Agreement, you may not use the API.
The API is protected by the United States Copyright Revision Act of 1976 and any revisions or amendments thereto, international copyright treaties, as well as other intellectual property laws and treaties. The API is licensed to you, and its use is subject to the terms of this Agreement.
1.1 "Application Programming Interfaces" or "API" means FAME technology, which may include object code, software libraries, software tools, sample source code, published specifications and Documentation. API shall include any future, updated or otherwise modified version(s) thereof furnished by FAME (in its sole discretion) to Licensee.
1.2 “Confidential Information” shall mean all information that is disclosed by FAME to Licensee, including without limitation, hardware and software designs; algorithms, routines and/or other subject matter embodied in or used by any portion of the API; product specifications and documentation; trade secrets; and other confidential or proprietary information. Confidential Information shall not include information which: (i) information already known by Licensee and which was acquired in a lawful manner other than subject to any obligation of confidentiality; (ii) information which is now or hereafter becomes a part of the public domain through no wrongful act or omission of Licensee or those acting in concert with the receiving party; (iii) information lawfully received without obligation of confidentiality, from a third party who is free to disclose it; (iv) information which Licensee can show by written evidence predating disclosure thereof by FAME had been independently developed entirely without reference to information received from FAME; or (v) is disclosed pursuant to any judicial or governmental order, provided that, to the extent permitted by law, Licensee gives FAME sufficient prior notice to contest such order.
1.3 "Documentation" includes, but is not limited to, programmer guides, CDs, manuals, flow charts, principles of operation and information appropriate or necessary for use in connection with the API.
1.4 “Third Party Software” has the meaning given in Paragraph 4.3.
2. Grant of License.
2.1 Grant. Subject to the terms and conditions of this Agreement, FAME hereby grants Licensee a limited, nonexclusive, non-transferable, royalty-free license to use the API and the Documentation solely for the purpose of the exchange of data between Licensee and FAME’s software products.
3. Certain Limitations on Scope of Rights.
3.1 Time and Substantive Scope. The license granted in Section 2 above is limited in time and substantive scope to its express terms. No additional or different rights are intended to be granted nor are the rights expressly granted to be extended or expanded by implication, by operation of the law, by construction of this Agreement or otherwise.
3.2 No Rights to Other Subject Matter. With the sole and exclusive exception of those rights in the API granted in Section 2 above, and without limiting the generality of Paragraph 3.1 above, nothing in this Agreement shall be construed to grant Licensee any other rights in or to any products, services or software or other subject matter owned, developed, licensed or otherwise held by FAME or its licensors. FAME reserves all rights not otherwise expressly granted in this Agreement.
4. Other Rights and Limitations.
4.1 Copies. Licensee may copy the API only as necessary to exercise its rights hereunder.
4.2 No Modification or Reverse Engineering. Licensee shall not have any right to make or to authorize the making of any modifications, additions to, deletions from, or other changes of any kind to any portion of the API or Documentation. Licensee may not attempt to create, re-create, reverse engineer, decompile, reverse compile, disassemble, or create derivative works from the API, in whole or in part.
4.3 Third Party Software. Licensee acknowledges that effective utilization of the API may require the use of a development tool, compiler or other software and technology of third parties (“Third Party Software”). Licensee is solely responsible for procuring such Third Party Software and technology and the necessary licenses for the use thereof. FAME makes no representation or warranty concerning Third Party Software and shall have no obligation or liability with respect to Third Party Software.
4.4 No Right to Sublicense. All rights not expressly granted are reserved by FAME and, except as expressly set forth herein, no right is granted by FAME under this Agreement directly, by implication, estoppel or otherwise, to allow Licensee to grant a sublicense to any other party.
5.1 Ownership. Licensee hereby acknowledges FAME’s exclusive ownership of any and all right, title, and interest in and to the API, Documentation and all associated intellectual property rights including, without limitation, all patent, copyright, trade secret, trademark and other intellectual property rights in and to the API.
5.2 Modifications and Enhancements. FAME shall own all right, title and interest (including all associated intellectual property rights) in and to the API, including all customizations, enhancements, modifications, improvements, derivations, revisions, translations (including compilation or recapitulation by computer), abridgements condensations, expansions, or any other form in which the API may be recast, transformed or adapted, and that, if prepared without authorization would constitute copyright infringement, whether authored by FAME or Licensee. Licensee hereby irrevocably transfers, conveys and assigns to FAME all of its right, title and interest therein.
6.1 No Support. FAME will not provide any support for the API under this Agreement, and nothing herein shall be construed to require FAME to provide support services or updates, upgrades, bug fixes or modifications to the API.
7.1 Non-Disclosure. Licensee shall not disclose, and shall take reasonable steps to prevent third parties from obtaining access to or using, the Confidential Information (or any portion thereof) of FAME without its prior written permission (except for such disclosure, access, or use which is required to perform its obligations or exercise its rights granted under this Agreement). Licensee shall insure that any employees, or any third parties who receive access to the Confidential Information of FAME, are advised of the confidential and proprietary nature thereof and agree in writing to abide by the obligations of confidentiality and restrictive use to at least the same extent as set forth herein. Without limiting the foregoing, Licensee agrees to employ with regard to the Confidential Information procedures no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information, but not less than reasonable care. Upon expiration or termination of this Agreement for any reason, Licensee shall immediately discontinue use of the Confidential Information of FAME and destroy or return to it all copies thereof in such party’s possession or control.
8. No Warranty.
8.1 General Disclaimer. THE API IS PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. FAME DOES NOT MAKE, AND THE LICENSEE HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES, TERMS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, AND NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. FAME SHALL HAVE NO LIABILITIES OR OBLIGATIONS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE API. FAME DOES NOT WARRANT THAT THE API AND DOCUMENTATION ARE SUITABLE FOR LICENSEE’S USE, THAT THE API AND DOCUMENTATION ARE WITHOUT DEFECTS OR ERRORS, THAT OPERATION WILL BE UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED. FAME MAKES NO WARRANTY REGARDING THE RESULTS OF THE USE OF THE API.
9. Limitation of liability.
9.1 Use at Own Risk. Licensee’s use of the API is at Licensee’s sole risk, and Licensee shall be solely responsible for any damage to its computer system or loss of data that results from the download or use of the API. 9.1 Limitation of Liability. IN NO EVENT SHALL FAME BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY EXEMPLARY, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, REVENUES, OR BUSINESS, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10.1 Indemnification. Licensee shall protect, defend, indemnify, and hold harmless FAME and its officers, directors, agents, employees, contractors, customers, suppliers, partners and representatives from and against any and all claims, demands, liabilities, obligations, deficiencies, losses, damages, actions, suits, proceedings, assessments, judgments, and settlements, (including all reasonable attorneys' fees) arising from Licensee’s use of the API, its connection to the API or any violation of the terms of this Agreement
11. Term and Termination.
11.1 Automatic Termination. This Agreement will terminate automatically if Licensee fails to comply with any of the terms and conditions of this Agreement, and Licensee will be liable to FAME for damages or losses caused by such noncompliance. The waiver by FAME of a specific breach or default shall not constitute the waiver of any subsequent breach or default.
11.2 Termination with Notice. FAME and Licensee shall each have the right to terminate the Agreement, upon thirty (30) days written notice.
11.3 Obligations Upon Termination. At the time of termination of this Agreement, Licensee will immediately cease using the API and destroy all adaptations or copies of the API and Documentation, or return them to FAME.
11.4 Survival. The rights of FAME and Licensee’s obligations contained in this Agreement survive any expiration or termination of this Agreement.
12. General Provisions.
12.1 Assignment. This Agreement, and the rights and obligations hereunder, may not be assigned, in whole or in part by Licensee, except to a successor to the whole of its business, without the prior written consent of FAME. In the case of any permitted assignments or transfer this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Licensee. This Agreement shall terminate immediately upon occurrence of any prohibited assignment.
12.2 Waiver. The waiver by FAME of a breach or a default of any provision of this Agreement shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of FAME to exercise or avail itself of any right operate as a waiver of any right by such party.
12.3 Severability. If a court of competent jurisdiction holds any provision hereof invalid, illegal, or unenforceable, such invalid, illegal, or unenforceable provision shall not affect the validity or operation of any other provision and shall be deemed to be severed from this Agreement, and the invalid, illegal, or unenforceable provision shall be replaced by a valid, legal, or enforceable provision that comes closest to the intent of the parties.
12.4 Headings. These are included solely for convenience of reference, are not to be considered a part of this Agreement, are not intended to be full or accurate descriptions of the contents thereof and in no way define, limit, expand or describe any of the terms and conditions and/or the scope or intent of this Agreement.
12.5 Governing Law. This Agreement shall be governed by the laws of the State of Florida, without regard to choice of law provisions.
12.6 Legal Fees. If FAME initiates legal action to collect any sums due FAME pursuant to this Agreement, it shall be entitled to recover its reasonable attorneys' fees, costs, and expenses associated with any such action.
12.7 Venue. Licensee acknowledges that it is subject to personal jurisdiction in any court located in the State of Florida for any claims arising out of or relating to this Agreement, and exclusive venue over such claims shall lie in the appropriate state or federal court in Broward County, Florida.
12.8 Jury Trial. The parties agree to waive trial by jury for any action related to this Agreement.
12.9 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between FAME and Licensee concerning the API, and supersedes all prior representations and/or agreements, whether written and/or with respect to the same subject matter. No waiver, consent or modification of terms of this Agreement shall bind either party unless in writing and signed by both parties, and then such waiver, consent or modification shall be effective only in the specific instance and for the specific purpose given.
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