EFFECTIVE: October 1, 2013
This Application Developer and API License Agreement (the Agreement), effective as of the date of acceptance of this Agreement (the Effective Date), is by and between Daniel A. Rosen, Inc./Credit-Aid Software (Credit Repair Cloud) and you, or the company, organization or other legal entity (Entity) that you represent (Licensee). If you are entering into this Agreement on behalf of an Entity, you are agreeing to this Agreement for that Entity and representing to Credit Repair Cloud that you have the authority to bind such Entity and its affiliates to this Agreement.
For purposes of this Agreement, capitalized terms shall have the meanings set fort below. Capitalized terms utilized in this Agreement and not defined have the meaning set forth in the Credit Repair Cloud Terms of Service (the Terms) and Credit Repair Cloud API Restrictions and Responsibilities (the Restrictions).
Agent means any individual authorized to use the Service by any Subscriber as an agent and/or administrator.
Account Data means data stored or transmitted on or through the Service by or on behalf of a Subscriber, Agent or End-User that specifically authorizes Licensee to access and uses such data in connection with Licensee's Credit Repair Cloud Applications and Login or other account configuration or usage data with respect to the Service of or by such Subscriber, Agent or End-User.
Confidential Information means all information disclosed by or on behalf Credit Repair Cloud to Licensee which is in tangible form and labeled confidential (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information may include, without limitation, proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information. For all purposes of these Terms, Account Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information (other than Account Data) that (i) was already known to Licensee at the time of disclosure by or on behalf of Credit Repair Cloud without an obligation of confidentiality; (ii) was or is obtained by Licensee from a third party not known by Licensee to be under an obligation of confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of this Agreement; or (iv) was or is independently developed by Licensee without use of Credit Repair Cloud's Confidential Information.
End-User means any person or entity other than an Agent with whom any Subscriber or its Agents interacts with using the Service.
Intellectual Property Rights means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights
Internal Use means the use of the Credit Repair Cloud API in connection with Licensee's subscription to the Service for Licensee's internal business purposes in accordance with the Terms
Publishing means the making of any Credit Repair Cloud Application available to any Subscriber other than Licensee or for any purpose other than for use by Licensee as a Subscriber for Internal Use
Subscriber means any individual or Entity that subscribes to the Service
Credit Repair Cloud API means the API and any accompanying or related documentation, source code, executable applications and other materials made available by Credit Repair Cloud, including, without limitation, through its Developer Pages
Credit Repair Cloud Applications means web or other software services or applications developed by Licensee that utilize or interact with the Credit Repair Cloud API and are authorized to be Published pursuant to this Agreement.
Credit Repair Cloud Marks means Credit Repair Cloud ®, and Credit Repair Cloud's other product and service names, trademarks, service marks, branding and logos made available for use in connection with the Credit Repair Cloud API pursuant to this Agreement
2. PURPOSE AND LICENSE
2.1 This Agreement governs Licensee's rights to use and access the Credit Repair Cloud API for the purpose of developing, implementing and Publishing Credit Repair Cloud Applications. Licensee's access to and use of the Credit Repair Cloud API for Internal Use is governed by Licensee's Terms of Service by and between Licensee and Credit Repair Cloud relating to Licensee's access and use of the Service, including any and all restrictions and policies implemented by Credit Repair Cloud from time to time with respect to the Credit Repair Cloud API as set forth in the Documentation or otherwise communicated to Licensee (General API Policies).
2.2 Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 3, Credit Repair Cloud grants to Licensee a nonexclusive, nontransferable, nonsublicensable, worldwide, revocable right and license during the Term to: (a) use and make calls to the Credit Repair Cloud API to develop, implement and distribute Credit Repair Cloud Applications solely for use by Subscribers in connection with the Service; (b) use, reproduce, distribute, and transmit Account Data to the extent necessary to format and display it through the Credit Repair Cloud Applications and (c) use and display the Credit Repair Cloud Mark only to identify that the Account Data originates from the Service.
2.3 Licensee grants to Credit Repair Cloud a nonexclusive, worldwide, fully paid-up, royalty-free license, for as long as its Credit Repair Cloud Applications are Published to an App Market (as defined below) maintained or operated by Credit Repair Cloud, to: (i) market and distribute such Credit Repair Cloud Applications, and (ii) to permit others to access, install, and (in the case of downloadable software applications) download such Credit Repair Cloud Applications through such App Market. Licensee further grants to Credit Repair Cloud a nonexclusive, worldwide, fully paid-up, royalty-free license, for the term of this Agreement, to use Licensee's name, Credit Repair Cloud Application name(s) and associated logos (collectively, Licensee Marks) solely to enable the Credit Repair Cloud to exercise its rights and perform its obligations under this Agreement. Any use of Licensee's Marks shall be in accordance with Licensee's reasonable trademark usage policies.
2.4 Credit Repair Cloud shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or the Credit Repair Cloud API or otherwise use any suggestions, enhancement requests, recommendations or other feedback Credit Repair Cloud receives from Licensee.
3. RESTRICTIONS AND RESPONSIBILITIES
The licenses granted in Section 2 are explicitly conditioned on Licensee's adherence to the following restrictions and compliance with its responsibilities as set forth herein:
3.2 In order to use and access the Credit Repair Cloud API, Licensee must obtain API credentials (a Token) by becoming a Subscriber. Licensee may not share its Token, shall keep such Token and all Login information secure and shall use it as Licensee's sole means of accessing the Credit Repair Cloud API.
3.3Licensee's Credit Repair Cloud Applications shall not substantially replicate products or services offered by Credit Repair Cloud, including, without limitation, functions or clients on platforms (such as iOS or Android) where Credit Repair Cloud offers its own client or function. Subject to the preceding sentence and the parties' other rights and obligations under this Agreement, each party agrees that the other party may develop and publish applications that are similar to or otherwise compete with such party's applications. Credit Repair Cloud Applications may not use or access the Credit Repair Cloud API or the Service in order to monitor the availability, performance, or functionality of any of the Credit Repair Cloud API or Service or for any similar benchmarking purposes.
3.4 Credit Repair Cloud Applications shall not, in any manner, display any form of advertising within or connected to any Account Data received by any Subscriber, Agent or End-User.
3.5 Licensee is not permitted to Publish any Credit Repair Cloud Application on any marketplace or other aggregator or public repository of code or applications ("App Market") that is not Published in identical form on the App Market maintained by Credit Repair Cloud.
3.6 Licensee shall not, under any circumstances, through a Credit Repair Cloud Application or otherwise, repackage or resell the Service, Credit Repair Cloud API or Account Data. Licensee is not permitted to use the Credit Repair Cloud API or any Account Data in any manner that does or could potentially undermine the security of the Service, the Credit Repair Cloud API, Account Data or any other data or information stored or transmitted using the Service. In addition, Licensee shall not, and shall not attempt to, interfere with, modify or disable any features, functionality or security controls of the Service or the Credit Repair Cloud API, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Service or the Credit Repair Cloud API, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Service or the Credit Repair Cloud API.
3.7 Licensee acknowledges that Licensee is solely responsible, and that Credit Repair Cloud has no responsibility or liability of any kind, for the content, development, operation, or maintenance of Credit Repair Cloud Applications. Without limiting the foregoing, Licensee will be solely responsible for (i) the technical installation and operation of its Credit Repair Cloud Applications; (ii) creating and displaying information and content on, through or within its Credit Repair Cloud Applications; (iii) ensuring that its Credit Repair Cloud Applications do not violate or infringe the Intellectual Property Rights of any third party; (iv) ensuring that Credit Repair Cloud Applications are not offensive, profane, obscene, libelous or otherwise illegal; (v) ensuring that its Credit Repair Cloud Applications do not contain or introduce Malicious Software into the Service, the Credit Repair Cloud API, any Account Data or other data stored or transmitted using the Service; (vi) ensuring that its Credit Repair Cloud Applications are not designed to or utilized for the purpose of spamming any Credit Repair Cloud Subscribers, Agents or End Users.
3.8 Licensee will respect and comply with the technical and policy-implemented limitations of the Credit Repair Cloud API and the restrictions of this Agreement in designing and implementing Credit Repair Cloud Applications. Without limiting the foregoing, Licensee shall violate any explicit rate limitations on calling or otherwise utilizing the Credit Repair Cloud API.
3.9 Licensee shall not make any modifications to any Account Data, other than as reasonably necessary to modify the formatting of such Account Data in order to display it in a manner appropriate for the pertinent Credit Repair Cloud Applications.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.2 Licensee represents, warrants and covenants that: (i) its Credit Repair Cloud Applications and Licensee Marks, the use of such Credit Repair Cloud Applications by its users, and the activities with respect to such Credit Repair Cloud Applications and Licensee Marks undertaken by Credit Repair Cloud in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe the Intellectual Property Rights of any person or entity; (ii) Licensee will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its Credit Repair Cloud Applications; and (iii) its Credit Repair Cloud Applications do not and will not contain or introduce into the Service, the Credit Repair Cloud API, any Account Data or other data stored or transmitted using the Service, any Malicious Software; (vi) its Credit Repair Cloud Applications are not designed to or utilized for the purpose of spamming any Credit Repair Cloud Subscribers, Agents or End Users; and (vi) it has all right, power and authority to grant the licenses granted to Credit Repair Cloud herein.
Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Credit Repair Cloud any of Licensee's Intellectual Property Rights in its Credit Repair Cloud Applications or Licensee's Marks or other technology, and nothing in this Agreement transfers or assigns to Licensee any of Credit Repair Cloud's Intellectual Property Rights in the Service, the Credit Repair Cloud API, the Credit Repair Cloud Marks, or Credit Repair Cloud's other technology or Credit Repair Cloud or its Subscriber's, Agents' or End Users' respective Intellectual Property Rights in any Account Data.
This Agreement does not entitle Licensee to any support for the Service or the Credit Repair Cloud API, unless Licensee makes separate arrangements with Credit Repair Cloud for such support. Licensee is solely responsible for providing all support and technical assistance to end users of its Credit Repair Cloud Applications. Licensee acknowledges and agrees that Credit Repair Cloud has no obligation to provide support or technical assistance directly to the users of Credit Repair Cloud Applications and Licensee shall not represent to any such users that Credit Repair Cloud is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to users of its Credit Repair Cloud Applications.
Licensee may from time to time, gain access to Confidential Information. Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein, Licensee may not disclose Confidential Information to a third party without the prior express consent of Credit Repair Cloud, provided in writing or by email. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
9. DISCLAIMER OF WARRANTIES
THE SERVICE AND THE Credit Repair Cloud API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND Credit Repair Cloud EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT Credit Repair Cloud DOES NOT WARRANT THAT THE SERVICE OR Credit Repair Cloud API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM Credit Repair Cloud OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10. LIMITATION OF LIABILITY
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL Credit Repair Cloud, OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY LICENSEE OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER Credit Repair Cloud HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, Credit Repair Cloud'S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUR OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, Credit Repair Cloud'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 10 will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
Licensee will indemnify and hold Credit Repair Cloud harmless against any claim brought by a third party against Credit Repair Cloud arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by Licensee or any matter which Licensee has expressly agreed to be responsible pursuant to this Agreement.
12. TERM AND TERMINATION
This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 12. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to Credit Repair Cloud, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Licensee's possession, and shall certify to Credit Repair Cloud that such actions have occurred. Sections 3, 4, 6, and 8-15 shall survive termination of this Agreement.
13. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS
13.1 Licensee may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Licensee's rights under this Agreement or delegate performance of Licensee's duties under this Agreement without Credit Repair Cloud's prior consent, which consent will not be unreasonably withheld. Credit Repair Cloud may, without Licensee's consent, assign this Agreement to any affiliate or in connection with any merger or change of control of Credit Repair Cloud or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. This Agreement do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
All notices to be provided by Credit Repair Cloud to Licensee under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (Courier) or US mail to the contact mailing address provided by Licensee to Credit Repair Cloud; or (ii) electronic mail to the electronic mail address provided for the Account owner related to your subscription to the Service. Licensee must give notice to Credit Repair Cloud in writing by Courier or US Mail to the following address: Credit Repair Cloud, Inc., Attn: Legal Department, 10866 Washington Blvd. #447Culver City, CA 90232 USA. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
17. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California without regard to conflict of laws principles. Licensee hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, Los Angeles County, for the purpose of resolving any dispute relating to this Agreement.