THIS SAAS SERVICE AGREEMENT (the “Agreement”), dated effective as of the date Customer submits this form by clicking the “Create Account” box provided through this website, which click you acknowledge constitutes a signature (the “Effective Date”) is by and between API Patrol, LLC, a Utah limited liability company (“API Patrol”), and the customer identified in the signature block below (“Customer”).
API Patrol has developed certain Software, as defined below, which Customer desires to use for its business purposes. Customer will be provided access to and use of the Software as part of the web-based API Patrol Service.
In consideration of the mutual covenants and agreements contained herein, the sufficiency of which is hereby acknowledged, Customer and API Patrol agree as follows:
1.1 “Account” means each individual Customer account in the API Patrol Service system that is associated with Customer’s subscription.
1.2 “Activation Date” means the later of the date this Agreement is executed by Customer and accepted by API Patrol.
1.3 “Administrative User” means Customer’s primary contact person with API Patrol, who has full access to the API Patrol Service and has the right and ability to control access for all other Authorized Users (i.e., can grant or restrict API Patrol Service access for other Authorized Users).
1.4 “Authorized User(s)” means any person that Customer allows to have access to the API Patrol Service and Customer’s account, including Customer’s employees and staff and any third parties that Customer allows to view or use the API Patrol Service.
1.5 “Billing Cycle” means each calendar month.
1.6 “Confidential Information” means all proprietary and confidential information exchanged by the parties or to which access is provided by one party to the other, including the Software; trade secrets; the substantive terms of this Agreement; a party’s non-public business, strategic and financial information; any plans, programs or forecasts; intellectual property; Customer Data; Third-Party Software and other third-party confidential information that is disclosed by one party to the other, any written materials marked as confidential and any other information, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information does not include information that the receiving party can prove: (a) is now or later becomes generally available to the public without fault of the receiving party; (b) was rightfully in the receiving party’s possession prior to its disclosure by the disclosing party; (c) is independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is obtained by the receiving party without obligation of confidentiality from a third party who has the right to disclose it. The receiving party may also disclose Confidential Information to the extent required under a judicial or legislative order or proceeding; provided that the receiving party gives the disclosing party, if feasible, prior notice and an opportunity to respond or object to such disclosure.
1.7 “Customer Data” means all information and data input by Customer or its Authorized Users into the API Patrol Service, including all usernames, passwords, and other data provided by Customer and its Borrowers. However, Customer Data does not include the Usage Data relating to Customer’s and its Users’ use of the API Patrol Service.
1.8 “API Patrol Service” means a web-based, hosted SaaS service. The API Patrol Service is hosted on servers of API Patrol or its agents, through which Customer is provided access to the Software via the Internet. The API Patrol Service may include any Third-Party Software that is embedded within the API Patrol Service or is made available to Customer under the terms of this Agreement, but excludes Third-Party Software that is licensed or provided to Customer under a separate license or subscription agreement.
1.9 “Prohibited Products” means the products listed on Appendix A hereto.
1.10 “Software” means the hosted computer software that Customer is granted the right to access and use as part of the API Patrol Service, including all systems, modules, web pages, websites, databases, software code, technology, etc., provided by API Patrol. “Software” includes all modifications, and all documentation and updates thereof.
1.11 “Third-Party Software” means any software or technology (including open source software) that is not part of the API Patrol Family Products.
2.1 Free Trial Terms. From time to time, API Patrol will make the API Patrol Service available to Customer on a trial basis free of charge, in the form of a private, trial demo account, until the earlier of (a) the end of the free trial period for which Customer has registered or is registering to use the API Patrol Service, or (b) the automatic start date on which the trial converts to a paid subscription. Additional trial terms and conditions may appear on the trial registration web page or documentation. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. DURING THE FREE TRIAL PERIOD THE API Patrol SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OR INDEMNITIES OF ANY KIND.
2.2 Automatic Subscription. YOU EXPRESSLY ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE FREE TRIAL INVOLVES A “NEGATIVE OPTION” (I.E., AUTOMATIC ENROLLMENT IN A SUBSCRIPTION OF THE API Patrol SERVICE), AND THAT YOU MAY BE LIABLE AND RESPONSIBLE FOR THE PAYMENT OF FUTURE SUBSCRIPTION FEES UNDER THE TERMS OF THIS AGREEMENT IF YOU FAIL TO TERMINATE THE FREE TRIAL BEFORE ITS EXPIRATION DATE. YOU MAY CANCEL THE FREE TRIAL OR SUBSCRIPTION AT ANY TIME AS SPECIFIED HEREIN. HOWEVER, IF YOU FAIL TO CANCEL WITHIN 14 DAYS OF YOUR ORIGINAL 14 DAY TRIAL, YOU WILL BE CHARGED THE FULL RETAIL PRICE FOR MONTHLY SERVICES GOING FORWARD UNTIL YOU CANCEL.
2.3 Trial Data. ANY DATA ENTERED INTO THE API Patrol ACCOUNT DURING THE FREE TRIAL PERIOD MAY BE TEMPORARY ONLY. UPON ACTIVATION OF THE PAID SUBSCRIPTION, CUSTOMER MAY BE PROMPTED TO CHOOSE IF IT WISHES TO RETAIN PRIOR ENTERED DATA, OR IF SUCH DATA SHALL BE PURGED. IF CUSTOMER DOES NOT ACTIVATE THE API Patrol SERVICE (EITHER AUTOMATICALLY OR MANUALLY) AS A PAID SUBSCRIPTION OR DOES NOT ELECT TO RETAIN THE TRIAL PERIOD DATA, API Patrol MAY PURGE AND DELETE THAT TRIAL PERIOD DATA AT ANY TIME AFTER EXPIRATION OF THE TRIAL PERIOD.
3.1 API Patrol Service. API Patrol grants Customer the non-exclusive and non-transferable right and license to access and use the API Patrol Service, including the Software, during the term of this Agreement, subject to the terms and conditions of this Agreement. API Patrol will make the API Patrol Service available for Customer and its Authorized Users to access during the term of this Agreement, subject to the terms and limitations set forth herein. The API Patrol Service may be hosted on API Patrol’s servers or, at API Patrol’s option, on the servers of a third party that is in the business of hosting web-based applications.
3.2 Access and URL. During the term of this Agreement, from and after the Activation Date and completion of initial configuration of the API Patrol Service for Customer, and provided that Customer has paid all fees due and owing and is in compliance with the terms of the Agreement, Customer and its Authorized Users will be able to access the API Patrol Service and use the Software. API Patrol will provide a URL for a website for use by Customer in the form of a sub-domain of API Patrol’s registered URL as chosen by API Patrol. If Customer chooses to sub-mask or forward a different URL to the URL provided by API Patrol, then Customer is solely responsible to independently purchase, retain ownership of and uphold terms and conditions of such URL.
3.3 Authorized Users. Authorized Users are granted a nonexclusive, non-transferable right to access and use the API Patrol Service for the sole benefit of Customer, subject to the terms of API Patrol’s End User Terms of Service, the current version of which is attached as Exhibit 1. Each Authorized User must accept the End User Terms of Service prior to accessing the API Patrol Service. The End User Terms of Service may be modified from time to time in API Patrol’s discretion; updated versions shall be effective upon notice to Authorized Users. API Patrol’s commitments, representations, and indemnities set forth in this Agreement apply only to Customer itself.
3.4 Restrictions. Customer and its Authorized Users will comply with the following restrictions and limitations: (a) not market, advertise, offer for sale, or sell any of the Prohibited Products in correlation with use of the API Patrol Service and the Software. (b) not copy or modify the content on the API Patrol websites, other than Customer Data, or any other materials or other proprietary documents provided by API Patrol; (c) not modify, alter, create derivative works of, reverse engineer, decompile or disassemble the Software; (d) not sublicense, distribute or sell the API Patrol Service or Software or Customer’s rights thereto, or allow any third parties to use or access the API Patrol Service or Software. For clarity, Customer and its Authorized Users are restricted to using the API Patrol Service and Software to service the provision of its own websites to the consuming public, and offer for sale, and sale, its own proprietary products through the website. (e) take all reasonable precautions to prevent Customer’s employees and consultants from making unauthorized copies of the Software, or other API Patrol materials or intellectual property, or misusing the API Patrol Service or such API Patrol materials or intellectual property in any way that would constitute a breach of this Agreement.
If Customer discovers any breaches of this Agreement by it or breach of the End User Terms of Service by its Authorized Users, it will promptly notify API Patrol and take commercially reasonable actions to resolve the problem, including any actions reasonably requested by API Patrol, as soon as reasonably possible. API Patrol reserves the right to audit Customer’s use of the API Patrol Service, upon twenty-four (24) hours’ prior written notice to Customer, to confirm that Customer’s use of the API Patrol Service is in compliance with the terms of this Agreement. Customer acknowledges the API Patrol may also monitor the API Patrol Service and Customer’s use thereof on API Patrol’s systems.
3.5 Administrative User. Customer will designate one Authorized User to be its Administrative Userand may designate up to two additional Authorized Users as backup Administrative Users. An authorized representative of Customer will notify API Patrol of the name and contact information for the Administrative Users, and any changes to the persons designated as primary or backup Administrative Users. The Administrative User is given administrative access to Customer’s account on the API Patrol Service and is responsible for granting or restricting API Patrol Service access for other Authorized Users. The Administrative User is also the primary contact person for Customer with API Patrol or its agents, and such person’s instructions and requests to API Patrol or its agents will have priority over the instructions or requests of any other employee or representative of Customer.
3.6 Business Opportunities for Customer. API Patrol may from time to time notify Customer of services, products, or other business opportunities arising out of API Patrol’s business, including its dealings with other customers and vendors of API Patrol. In each case Customer will have the right to elect whether or not to participate in such transaction or to receive additional information, on an “opt-in” basis.
3.7 Third-Party Software. Any open source components of the API Patrol Service are subject to the applicable third-party open source license terms; API Patrol will use reasonable efforts to make such terms available upon request. Other Third-Party Software that is embedded in the API Patrol Service Software, or is provided by API Patrol as an integrated part of the API Patrol Service, is provided by API Patrol to Customer pursuant to the applicable terms of this Agreement, unless a separate third-party license or subscription agreement for such Third-Party Software is provided to Customer. Third-Party Software is authorized only for use in connection with the API Patrol Service, unless otherwise permitted under an open source license.
4.1 API Patrol Ownership. API Patrol and/or its licensors retain all right, title and interest, including without limitation all patents and patent rights, trademarks, service marks, copyrights, trade secrets and other proprietary rights, in and to the API Patrol Service, including the Software, documentation and all content provided by API Patrol as part of the API Patrol Service, including any customized software or other derivative works, subject to the grants of rights and licenses set forth in this Agreement. API Patrol also owns all right, title and interest in and to (i) the usage data relating to its customers’ use of the API Patrol Service (“Usage Data”), and (ii) the results or information provided by third party vendors in response to actions or queries of customers (excluding any Customer Data that is contained within the vendor’s response). API Patrol specifically reserves all rights not expressly granted to Customer in this Agreement.
4.2 Customer Data. Customer owns and shall retain all right, title and interest in and to Customer Data, subject to API Patrol’s rights as set forth below. API Patrol will use commercially reasonable efforts to safeguard the security, confidentiality and integrity of Customer Data.Customer grants API Patrol the right to use, reproduce, modify and distribute Customer Data as necessary or appropriate to transmit, store, encrypt, calculate, and analyze the Customer Data, create and distribute reports, and to provide, modify and improve the API Patrol Service and Software. To the extent permitted by applicable law, Customer also grants API Patrol the right to share Customer Data with third parties in connection with API Patrol’s general activities of conducting business, including providing Customer with possible solutions to their business needs, and developing and providing third party integrations with the Software (pulling credit, data decoding, data lookup, automated telephone calls, merchant services, etc.).
4.3 Usage Data and De-Identified Data. API Patrol has the right to monitor Customer’s and its Authorized Users’ use of the API Patrol Service to obtain Usage Data, including usage patterns (e.g., levels of use based upon days of the week and times), and level of usage for different functions of the API Patrol Service as examples. API Patrol also has the right to collect, aggregate and remove all personally identifiable information from Customer Data, and to retain, use and disclose such de-identified data (the “De-Identified Data”) for any purpose permitted by law, including without limitation benchmarking, product and service development, development of best practices, making it available to third parties, and research and statistical purposes without reimbursement or notification to, or consent or authorization from, Customer. API Patrol shall own all De-Identified Data, including any calculations, functions, features, or other modifications of the Customer Data, excluding the Customer Data in its raw form.
4.4 Feedback and Suggestions.If Customer or its Authorized Users provide any suggestions, ideas or feedback to API Patrol (“Feedback”), API Patrol shall have a royalty-free, worldwide, irrevocable, perpetual license to use such Feedback and incorporate it into or use it to improve API Patrol’s software, products and services. API Patrol shall exclusively own all right, title and interest in and to any software and intellectual property developed or delivered by API Patrol to Customer in the performance of this Agreement, regardless of whether it is based on or incorporates any Feedback, subject to the rights granted herein to Customer.
5.1 As a reseller, API Patrol will provide the following Services:
5.2 setting you up as a supplier of the Product on API Patrol's platform and establishing a Supplier Account which provides you with access to the Supplier Dashboard and allows you to view all sales made by API Patrol and the monies which are due to you for sales of the Product by API Patrol;
5.3 acting as your non-exclusive reseller of the Product via API Patrol Checkout across all territories supported by API Patrol
5.4 Facilitating product fulfillment by you to Buyers through connecting you to Buyers to enable such Buyer to download / access the Product, as applicable; and
5.5 Order support and being responsible for all aspects of Sales Tax as between you, API Patrol and Buyers.
5.6 From time to time, you may choose to activate optional Additional Services. The Additional Services may be activated via the Supplier Dashboard.
6.1 Obligations. Customer will: (a) be responsible for its Authorized Users’ compliance with this Agreement and the End User Terms of Service; (b) be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired such data; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the API Patrol Service, and notify API Patrol promptly of any such unauthorized access or use; (d) use the API Patrol Service only in accordance with its documentation (as available) and/or its intended purpose; (e) not make the API Patrol Service available to anyone other than Authorized Users; (f) not use the API Patrol Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (g) not use the API Patrol Service to store or transmit any virus, Trojan,worm, or other malicious or harmful computer software code or routines; (h) not interfere with or disrupt the integrity or performance of the API Patrol Service or third party data contained therein; (i) not attempt to gain unauthorized access to the API Patrol Service or its related systems, networks, or other user data; (j) not engage in copying, scraping, or reverse engineering of the Software or any aspect of the API Patrol Service; (k) not use the API Patrol Service for spamming, phishing, pharming, or for any obscene or immoral purpose; (l) not use the API Patrol Service to interfere with or circumvent the security features of the API Patrol Service; (m) in the event of a dispute, not engage in any conduct or communication, public or private, that disparages API Patrol or any of its products or services (other than within legal proceedings); and, (n) conduct itself, and require that its employees conduct themselves, in a professional manner during interactions with all API Patrol personnel.
6.2 Usage Limitations. The API Patrol Service may be subject to other usage limitations, such as, for example, limits on storage space, on the number of calls Customer are permitted to make against an API (application programming interface), and, for any portion of the API Patrol Service that enables Customer to provide Hosted Websites, on the number of page views by visitors to those websites, or the size of the hosted content.
6.3 Customer Security Requirements. Customer is solely responsible for the security of data residing on server(s) owned or operated by Customer or a third party designated by Customer (e.g., a web hosting company, processor, or other service provider), including being responsible for the security of all data residing outside of the API Patrol Service, as well as keeping confidential all usernames and passwords of Authorized Users in order to avoid unauthorized access to the API Patrol Service.
6.4 API Patrol Security Requirements. API Patrol will use commercially reasonable, industry-standard methods to safeguard the security of the API Patrol Service, including processes of encryption of data, incident management policies, data backup policies and other procedures to ensure both the safety and security of the Customer Data residing in the API Patrol Service. In compliance with PCI-DSS, API Patrol is responsible for the security of cardholder data that resides on the API Patrol Service. This includes securing cardholder data that is stored, processed, or transmitted on behalf of the Customer, to ensure the security of cardholder data and its environment.
7.1 Fees & Costs: All pricing and transactions between API Patrol and Customer will be in U.S. Dollars, at the rates outlined on API Patrol’s pricing page.. Customer is responsible for any and all fees incurred. All fees are charged at the time of purchase, subscription, usage, or approval of charge, as applicable to that particular type of fee. All fees are non-refundable unless otherwise expressly stated in this Agreement. If the fee category on API Patrol’s pricing page. has an asterisk next to the label of that fee type, that indicates that fee is a recurring monthly charge and not a per use fee. In the event of a conflict between the pricing page and any other terms in this Agreement, the terms of the pricing page shall control.
The fees on API Patrol’s pricing page. and set forth below will apply for the Initial Term:
7.1.1 Subscription Fee – This fee is a recurring monthly fee, starting on the Activation Date, calculated by consideration of a number of elements such as: number of Users, scope of services, etc., as listed on API Patrol’s pricing page..
7.1.2 Transactions Fees – These are fees based on completed transactions performed in or through the API Patrol Service, as listed on API Patrol’s pricing page..
7.1.3 Email Fees – These are fees based on option use of the email contact feature, as listed on API Patrol’s pricing page.
7.1.4 New Features – API Patrol may add services or features to the API Patrol Service that will be available to Customer on an optional basis and may be subject to an additional fee. Fees for these new features or services will be specified in each case, and will be on a per use basis.
7.1.5 API Patrol is not obligated to issue refunds or credits but may do so if a Seller or Affiliate commits fraud, if there are mistakes by API Patrol or a Seller, or if a Product violates the Terms of Service. API Patrol also has the right to delay payouts for risk assessment, suspend accounts, and refund payouts without warning if there is evidence of fraud.
7.2 Pricing Changes All pricing is locked for the Initial Term. Upon renewal Subscription Fees, Billable Accounts, and Usage fees may increase.
7.3 Billing Method. Customer is required to either pay in advance or be enrolled for automatic withdrawal with a valid payment profile. The primary payment profile that is on file will be automatically processed for payment on the day after the end of the Billing Cycle. If Customer elects automatic withdrawal, Customer hereby authorizes API Patrol to collect this automatic payment, using the payment profile selected by Customer, for the balance due each Billing Cycle. Customer’s activation payment profile will automatically be set to the primary payment profile upon activation, unless Customer changes that setting. Customer may manage this payment profile in the API Patrol Service, API Patrol will invoice Customer on a monthly basis all Fees in accordance with its pricing page, as applicable, for the prior month’s activity, Any such disputes must be reasonable and made in good faith. For amounts in dispute by Customer, Customer shall provide notice within five (5) business days of the end of the Billing Cycle. If Customer fails to give notice in this time frame, Customer waives all disputes.
7.4 Remedies for Nonpayment. If Customer’s account is more than 10 days past due and the overdue amounts have not been paid within ten (10) days after receipt of written notice of such breach (including by an on-screen non-payment notification to Customer within the API Patrol Service), API Patrol has the option and right to require payment on the account by partially or fully suspending and blocking Customer’s and its Authorized Users’ access to the API Patrol Service until all past-due amounts are paid. Customer’s account may be assessed additional fees for blocking or unblocking the account due to late payment, and Customer hereby consents to this collection practice. This express statement of remedy is not a waiver of any other remedies available the API Patrol in law or equity.
7.5 Taxes. Customer is responsible for all applicable taxes on the fees paid by Customer to API Patrol, including, without limitation, any and all sales, use, and value-added taxes, (excluding taxes on API Patrol’s net income).Customer is solely responsible for any sales/use taxes, even if not collected by API Patrol. To the extent required by governing law, API Patrol will invoice Customer for any sales or use taxes applicable to the API Patrol Service and remit such amounts to the applicable governmental authorities. If Customer is a tax-exempt entity, Customer will provide a tax-exemption certificate to API Patrol.
8.1 General Confidentiality Obligations. The party receiving Confidential Information will not disclose it to any person or use it for any purpose, except as expressly permitted by this Agreement. The receiving party may disclose Confidential Information only to its employees, representatives and contractors who need to know such information and who are bound to keep such information confidential. The receiving party will give Confidential Information at least the same level of protection as it gives its own confidential information of similar nature or sensitivity, but not less than a reasonable level of protection. The receiving party will maintain Confidential Information in a safe and secure place and will not copy such information, except to the extent reasonably necessary for the purposes of this Agreement.
8.2 Personal Data and Privacy. API Patrol agrees to maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including personal information and personal data of Users and other individuals (“Personal Data”). API Patrol will not disclose or use Personal Data except (i) as set forth in this Agreement or the then-current Privacy Policy on API Patrol’s website, (ii) as compelled by law, (iii) as expressly permitted or instructed by Customer, or (iv) as reasonably necessary in order to provide the API Patrol Service and other services in connection with this Agreement. API Patrol shall require its employees and contractors to be subject to confidentiality undertakings with respect to Customer Data, including Personal Data.
9.1 Customer Warranties. Customer represents and warrants that: (a) Customer has the necessary right, power and authority to execute this Agreement and to perform Customer’s obligations herein; (b) no authorization or approval from any third party is required in connection with Customer’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; (d) Customer’s obligations under this Agreement do not violate any law or breach any other agreement to which Customer is bound; (e) all representations and statements made by Customer in this Agreement, or in any other document relating hereto by Customer or on Customer’s behalf, are true, accurate and complete in all material respects; (f) Customer is engaged in a lawful business that includes the sale of products and/or services, and Customer has such permits and licenses as are required to conduct its business under the laws of all applicable jurisdictions in which Customer conducts such business; and (g) Customer will comply, at its sole expense, with all federal, state and local laws, policies, guidelines, regulations, ordinances or rules applicable to Customer in connection with this Agreement and its use of the API Patrol Service.
9.2 API Patrol Warranties. API Patrol represents and warrants that: (a) API Patrol has the necessary right, power and authority to execute this Agreement, to grant the rights and licenses herein granted to Customer, and to perform API Patrol’s obligations herein; (b) no authorization or approval from any third party is required in connection with API Patrol’s execution, delivery or performance of this Agreement; (c) this Agreement constitutes a legal, valid and binding obligation of API Patrol, enforceable against API Patrol in accordance with its terms; (d) the API Patrol Service will conform in all material respects with its intended purpose. In the event of a breach of this warranty, API Patrol’s exclusive obligation and liability will be (i) to repair or correct the API Patrol Service so that it conforms to this warranty, or (ii) if the API Patrol Service cannot be or is not so corrected within a reasonable time, either party may elect to terminate this Agreement and Customer shall receive a refund of any prepaid amounts for the API Patrol Service from the date of termination; and (e) From and after the Activation Date, API Patrol will use commercially reasonable efforts to provide Customer with access the API Patrol Service excluding downtime (i) scheduled in advance for maintenance on a periodic basis, (ii) due to unscheduled emergency maintenance, (iii) due to faults caused by Customer or Customer’s system, or (iv) due to other causes outside of the reasonable control of API Patrol, including without limitation malfunction or cessation of Internet services by any third party network or ISPor service interruptions caused by the third party cloud storage service. To the extent reasonably feasible, API Patrol will provide Customer reasonable advance notice for emergency maintenance or Software performance interference issues, which will be published on the API Patrol Service’s status page. (f) API Patrol’s warranties under Sections 8.2(d) and (e) are conditional upon Customer having in place, at a minimum, API Patrol’s then-current recommended infrastructure configurations.
9.3 Limitation of Warranties; Disclaimers. API Patrol does not warrant or guarantee that the API Patrol Service will be uninterrupted, error-free, or free from any potential or actual security threats. The API Patrol Service and Software, and other services of API Patrol, are provided to Customer and its Authorized Users on an “AS IS, AS AVAILABLE” basis. API Patrol AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITH RESPECT TO MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS OF THE API Patrol SERVICE FOR ANY PARTICULAR PURPOSE OR INTENDED USE. API Patrol MAKES NO WARRANTIES WHATSOEVER AND IS NOT LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY CUSTOMER AS A RESULT OF USING ANY THIRD-PARTY SERVICE OR SOFTWARE, EVEN IF LINKED TO OR INTEGRATED IN THE API Patrol SERVICE. API Patrol is not responsible or liable for damage, malfunction, or performance failures resulting from misuse, physical abuse, improper operation, the environment or other causes beyond API Patrol’s exclusive control. No employee of API Patrol or any third party has the right to make any representation or warranty regarding the API Patrol Service, except as expressly set forth in this Agreement.
Without limiting the foregoing, and except as otherwise expressly set forth in this Agreement, API Patrol does not make any representation, warranty or guarantee as to the results that may be obtained from Customer’s use of the API Patrol Service or as to the accuracy or reliability of any information therein, or with respect to any third party product or service, whether integrated with the API Patrol Service or not, or recommendations or information offered by any API Patrol personnel or third parties. Customer expressly acknowledges and agrees that Customer’s use of the API Patrol Service does not in any way guarantee the security or reliability of Customer’s website. Customer understands and agrees that API Patrol shall bear no risk with respect to Customer’s sale, products or services, including any risk associated with the security of Customer’s website, credit card fraud or chargebacks, or any risk associated with Customer’s failure to register with the appropriate governmental agencies or obtaining the appropriate licenses to conduct business, including charging interest or finance charges, or any other regulatory or legal requirements. API Patrol is not responsible and does not assume any obligations for any regulatory compliance or disclosures required of Customer.
Customer expressly agrees that API Patrol shall not be liable for any loss or damages whatsoever arising from or caused by (i) Customer’s failure to properly activate, integrate, use or manage the API Patrol Service; (ii) any fraudulent transactions; (iii) disruption of the API Patrol Service attributable to a Force Majeure event; (iv) actions or inactions of any third party, including without limitation, merchant service providers, payment processors, bank URL support, email systems, or any products or services with which the API Patrol Service is integrated; (v) any person’s unauthorized access to Customer Data (including credit card number and other personally identifiable information), transaction data or personal information, except if such access is due solely to API Patrol’s grossly negligent or willful misconduct; or (vi) Third-Party Software that is not embedded within the API Patrol Service.
9.4 Limitations of Liability. IN NO EVENT WILL API Patrol, ITS AFFILIATES OR LICENSORS BE LIABLE FOR LOST DATA, LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE FURNISHING, PERFORMANCE, OR USE OF ANY SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. API Patrol’S AND ITS AFFILIATES’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CLAIM(S), INCLUDING INDEMNIFICATION, WILL NOT IN ANY EVENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE; PROVIDED, HOWEVER, THAT IN THE CASE OF A CLAIM RELATING TO ANY SERVICES FOR WHICH A SEPARATE ONE-TIME FEE WAS CHARGED, THE CAP ON LIABILITY SHALL BE THE AMOUNT OF SUCH FEE. This limitation shall apply whether or not the alleged breach by API Patrol is a breach of a fundamental condition or fundamental term.
9.5 Legal Compliance; Use of API Patrol Forms. Customer acknowledges that API Patrol’s personnel are not financial experts, attorneys, accountants or experts on the applicable laws of any state or jurisdiction. API Patrol personnel may consult with Customer’s Authorized Users and provide assistance and recommendations, but Customer is solely responsible for compliance with any applicable laws, regulations and professional standards by Customer and its Authorized Users. This includes, without limitation, whether it is legal or appropriate, under the laws and regulations that govern Customer. THE FINAL DECISION ABOUT ANY ASPECT OF CUSTOMER’S BUSINESS, INCLUDING WITHOUT LIMITATION COMPLIANCE WITH LAWS IN CONNECTION WITH CUSTOMER’S USE OF THE API Patrol SERVICE, IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF CUSTOMER.
10.1 By API Patrol. API Patrol will defend Customer against any and all third party claims or suits (each a “Claim”) that the API Patrol Service infringes any third party U.S. patent that has issued as of the Effective Date, copyright or trademark, or misappropriates any trade secret, and API Patrol will pay any liabilities, damages, costs and expenses (including reasonable attorneys’ fees) finally awarded in connection with such Claim or paid in settlement. If the API Patrol Service is finally held or reasonably believed by API Patrol to infringe, API Patrol shall use reasonable efforts to obtain a license under the rights that have been infringed, to modify the API Patrol Service so it is non infringing or to provide to Customer a substitute service and/or software that is noninfringing; provided that if such options are not commercially reasonable, API Patrol may terminate the applicable API Patrol Service or this Agreement upon written notice to Customer, in which event API Patrol shall refund to Customer all prepaid fees paid for any period after termination of this Agreement, as well as any period prior to termination during which Customer was prevented from accessing the API Patrol Service. API Patrol shall have no liability for infringement claims arising out of or related to any Third-Party Software, or arising out of modification of the API Patrol Service by any party other than API Patrol or the combination or use of the API Patrol Service with any software, equipment, product or process not furnished by API Patrol, or arising out of any unauthorized use of the API Patrol Service by Customer, if use of the API Patrol Service alone, as authorized, and in its current, unmodified form would not have been an infringement. THIS SECTION STATES API Patrol’S AND ITS LICENSORS’ ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM FOR INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
10.2 By Customer. If any action is instituted by a third party against API Patrol (a) arising out of or relating to Customer’s use of the API Patrol Service, including without limitation (i) any breach or alleged breach by Customer of any of its representations, warranties, or obligations set forth in this Agreement; (ii) any breach of any applicable law or regulation governing or otherwise applicable to Customer’s industry, business, or operations; (iii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or its employees, or agents; or (iv) any claims associated with the provision of services by Customer to its Borrowers; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of API Patrol and shall pay all damages attributable to such claim which are finally awarded against API Patrol or paid in settlement of such claim.
10.3 Indemnification Procedure. Any party that is seeking to be indemnified under this Section 9 (an “Indemnified Party”) for a third party Claim must (i) promptly notify the other party (the “Indemnifying Party”) of the Claim; and (ii) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (b) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (c) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will reasonably cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense. The Indemnified Party may, at its option and expense, participate in the defense of the Claim with counsel of its own choosing.
11.1 Term. There is no set term or automatic expiration. The subscription remains active until cancelled.
11.2 Cancellation without Cause. Customer may cancel the subscription at any time with or without cause. However, the subscription will typically remain active until the end of a Billing Cycle and all fees incurred during the billing cycle must be paid.
11.3 Termination for Cause. API Patrol may terminate this Agreement at any time if Customer party commits a material breach of this Agreement and does not cure such breach within fifteen (15) days of written notice specifying the nature of such breach (except for breaches by a party of its confidentiality obligations or payment obligations, for which the cure period will be five (5) business days after receipt of written notice of such breach, including by an on-screen non-payment notification to Customer within the API Patrol Service). A confidentiality breach is deemed cured, for purposes of this Section 10.3, if the Customer (i) mitigates the damages resulting from the breach to the extent reasonably feasible; and (ii) takes reasonable steps, such as modifying its internal policies and practices, to prevent such a breach from reoccurring. Notwithstanding the foregoing, API Patrol may, in its reasonable business judgment, determine that a confidentiality breach was sufficiently material that it wishes to terminate this Agreement without permitting a cure, in which case the API Patrol shall so notify Customer and this Agreement shall terminate at the end of the five (5) day notice period. API Patrol may also terminate or suspend Customer’s account and this Agreement immediately, without prior notice, if API Patrol reasonably determines that Customer is conducting an illegal business or if API Patrol is instructed to terminate or suspend Customer’s account by federal or state regulatory authorities. If the reason for a suspension of Customer’s account is resolved, API Patrol agrees to promptly restore access to Customer’s account.
11.4 Effect of Termination. In the event of termination of this Agreement for any reason, Customer shall immediately cease using the API Patrol Service. After termination of this Agreement (including any applicable transition period (i.e. through the end of the Billing Cycle)), Customer will not have any access to the API Patrol Service or the Customer Data stored therein; it is Customer’s sole responsibility to copy or remove such Customer Data from the API Patrol Service prior to termination. After termination, API Patrol has no obligation whatsoever to maintain or store Customer Data and API Patrol will promptly delete or remove Customer Data from its system. API Patrol reserves the right to store the Customer Data after termination to comply with applicable laws and regulations. Each party shall promptly return to the other party or destroy all Confidential Information of the other party, and upon request of the other party will certify such return or destruction, provided that if retention of any Confidential Information is required by law or practice, then such retained Confidential Information shall be described in the applicable certification and remain subject to the terms of this Agreement, including. Customer shall pay all accrued charges and fees within thirty (30) days of the date of termination. Sections 3.4, 4, 7, 6.4, 6.5, 6.6, 8.3, 8.4, 9, 11.2 and 11.3 shall survive any termination of this Agreement.
11.5 Any lifetime offer will be serviced to the Customer for at least one year from the date of purchase, after that API Patrol has the right to cease the service if needed. If API Patrol for any circumstance can't provide the service for 1 year from the Customer's date of purchase, then the Customer is entitled to a full refund.
12.1 Assignment. Customer will not assign this Agreement or transfer, lease, export or grant a sublicense of the rights granted herein to any third party (other than designating Authorized Users), without API Patrol’s prior written consent. API Patrol’s consent to an assignment of this Agreement by Customer is subject to API Patrol’s review and approval of the proposed assignee. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, each Party’s respective successors and permitted assigns.
12.2 Governing Law. This Agreement shall be governed by the laws of State of Utah (excluding conflicts of laws provisions). The parties submit to the exclusive jurisdiction and venue of Utah State and federal courts with respect to any action between the parties relating to this Agreement. The prevailing party in any action shall be entitled to an award of its reasonable costs and attorneys’ fees from the other party.
12.3 Injunctive Relief. Customer acknowledges that the API Patrol Service and other Confidential Information are highly valuable to API Patrol and its licensors, and that money damages would not be a sufficient remedy for any breach of Customer’s obligations herein with respect to confidentiality or misuse of API Patrol’s or its licensors’ proprietary materials and information. Therefore, in the event of any breach by Customer of its obligations with respect to the scope of its rights or its confidentiality obligations, API Patrol or its licensors shall be entitled to seek specific injunctive relief as a remedy for such breach, in addition to all other available legal or equitable remedies, without the necessity of posting bond or other security, to the extent permitted by law.
12.4 Publicity. Neither party shall release or use the other party’s name, logo, trademark or other intellectual property, or reference this Agreement in any manner, except as specified in accordance with this Agreement, without the prior written consent of the other party; provided, that the foregoing shall not apply with respect to a party’s sales, marketing, investor, regulatory and similar non-public materials and discussions. Notwithstanding the foregoing, (i) API Patrol is permitted to include Customer’s name and/or logo on customer lists on API Patrol’s website and in other marketing materials; and (ii) if requested by API Patrol, the parties will cooperate in good faith to issue a press release that acknowledges the partnership between the Parties within 60 days of the Effective Date.
12.5 Severability. In the event that any of the terms or provisions herein are determined by a court of competent jurisdiction to be unenforceable or invalid for any reason whatsoever, such terms shall be severed, and the enforceability or validity of the remaining terms shall not be affected thereby.
12.6 Entire Agreement; Amendment; Waiver. This Agreement, including the addenda and exhibits attached hereto, which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and that this Agreement supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on API Patrol and shall not apply to this Agreement unless mutually executed by Customer and API Patrol. Except as otherwise specifically set forth herein, this Agreement may be amended only by a written document signed by authorized representatives of both parties. The waiver by either party of any default, breach or obligation hereunder shall be ineffective unless in writing, and shall not constitute a waiver of any subsequent breach or default.
12.7 Notices. All notices or other communications required under to this Agreement to API Patrol shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail, return receipt requested, or by commercial overnight delivery service with provisions for a receipt, or by confirmed facsimile or e-mail, to the address of the receiving party set forth below or such other address a party may specify by written notice. Notwithstanding the foregoing, notices from Customer to API Patrol regarding changes to or termination of Customer’s subscription to the API Patrol Service may also be sent to the email address hello@apipatrol.com.
API Patrol Contact Information:
hello@apipatrol.com
API Patrol
All notices to Customer shall be delivered through API Patrol’s internal communication portal, or otherwise via email to the email address provided by Customer upon subscription.
12.8 Force Majeure. API Patrol shall be excused from delays or failure to perform the API Patrol Service or other services pursuant to this Agreement to the extent such delays or failure result from acts of nature, strikes, fire, riots, war, acts of public enemies, fires, pandemics, epidemics, labor disputes, or any other causes beyond its reasonable control (each a “Force Majeure” event). In the event of a delay in implementation and related services or other failure to perform obligations due to any Force Majeure event, the date or dates of performance of such services or obligations shall be extended for a period equal to the time lost by reason of the delay. If a party’s performance is affected by an event of Force Majeure, including Customer’s payment obligation, it will promptly inform the other party and will use commercially reasonable efforts to fulfill its obligations under this Agreement and to remove or avoid any disability and mitigate any damages caused by such event of Force Majeure at the earliest time and to the greatest extent as is reasonably feasible.
12.9 Independent Contractors. The parties are independent contractors, and this Agreement shall not be construed to create any agency, fiduciary relationship, franchise, or partnership between them. Further, it is not the intention of this Agreement or of the Parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed so as to confer upon any third party or entity other than the Parties hereto a right of action under this Agreement or in any manner whatsoever.
12.10 Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement. This Agreement shall become effective when one or more counterparts have been signed by the parties hereto and delivered to the other parties, it being understood that the parties need not sign the same counterpart.
12.11 Electronic Signatures. Each party agrees that if it or any other party draws, types or attaches its signature or any other text, symbol or image in a box or space associated with any Contract Document, such party is agreeing to be legally bound by such terms and conditions. The parties agree that such action constitutes an “Electronic Signature,” which shall have the same force and effect as an original signature.
Although API Patrol makes every effort to keep this list up to date, it may change without notice. All changes take effect immediately. It is your obligations to check back frequently.
End User Terms of Service
PLEASE READ THESE TERMS OF SERVICE (THE “TERMS”) CAREFULLY BEFORE ACCEPTING THESE TERMS, UNDER WHICH YOU WILL BE AUTHORIZED TO USE THE API Patrol SERVICE PROVIDED BY API Patrol, LLC, A UTAH LIMITED LIABILITY COMPANY (“API Patrol”). BY CLICKING “I ACCEPT” OR BY USING THE API Patrol SERVICE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS IN THEIR ENTIRETY. THESE TERMS SET FORTH YOUR LEGAL RIGHTS AND OBLIGATIONS RELATED TO THE API Patrol SERVICE. IF YOU DO NOT ACCEPT THESE TERMS, CLICK “I DO NOT ACCEPT” BELOW.
These Terms are a legal agreement between you and API Patrol and govern your use of the API Patrol subscription service as an authorized user of a customer of API Patrol (the “Customer”), which has signed a separate subscription agreement with API Patrol. API Patrol makes its software subscription service (the “API Patrol Service”), including the related software (the “Software”) available to its customers and their authorized users. The API Patrol Service is accessible through API Patrol’s designated website and web portal (the “Website”), subject to the following terms and conditions. Any rights not expressly granted herein are reserved by API Patrol.
Changes to Terms: API Patrol may update these Terms from time to time. You may be notified of such changes by email and/or API Patrol may require you to accept the new version of the Terms in order to continue accessing the API Patrol Service. If you object to any changes in these Terms, you may discontinue your use of the API Patrol Service.
In consideration of API Patrol’s provision of the API Patrol Service and related services to you, you agree with API Patrol as follows: