Updated: February 12, 2019
This ARTrail® Consumer Web Services API License Agreement and Terms of Use (the “Agreement”), effective as of the date of acceptance of this Agreement (the“Effective Date”), is by and between KG Hawes, LLC. (“KG Hawes” “us,” “our” or “we”), and you, or the company, organization or other legal entity that you represent (the “Licensee”).
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE API, THE SDK, OR ANY MATERIAL RELATING THERETO.
BY DOWNLOADING, INSTALLING, OR USING THE API, THE SDK, OR ANY MATERIAL RELATING THERETO, YOU AGREE TO ABIDE BY AND COMPLY WITH THIS AGREEMENT, AND YOU AFFIRM THAT YOU EITHER ARE OVER THE AGE OF MAJORITY IN YOUR JURISDICTION OF RESIDENCE, ARE AN EMANCIPATED MINOR, OR POSSESS LEGAL PARENTAL OR GUARDIAN CONSENT, AND THAT YOU ARE FULLY ABLE AND COMPETENT TO ENTER INTO THE TERMS, CONDITIONS, OBLIGATIONS, AFFIRMATIONS, REPRESENTATIONS, AND WARRANTIES SET FORTH IN THIS AGREEMENT.
BACKGROUND. KG Hawes has developed a set of Application Programming Interfaces and related technology called the “Consumer Web Services API” (the “API/SDK”) in connection with our proprietary computer program known as “ARTrail®”. Pursuant to the terms of this License Agreement (“Agreement”), (“you” or “Licensee”) may use the API/SDK to create plug-ins and associated applications that interact with and enhance the use of ARTrail. By using the API/SDK and/or its accompanying manuals, samples and examples (the “Documentation”), you agree with KG Hawes to be bound by the terms and conditions set forth herein. In addition to the terms of this Agreement, you may also be bound by the ARTrail End User License Agreement and any additional Terms of Use for ARTrail and any related applications or web sites. If there is any conflict between the terms of another agreement and this Agreement, then this Agreement shall control with respect to your use of the API/SDK and the other agreement shall take precedence with respect to the subject matter of such other agreement. THEREFORE, for good and valuable consideration, including the rights and license granted in this Agreement, and intending to be legally bound, KG Hawes and Licensee agree as follows:
1. DESCRIPTION AND USE
1.1 ARTrail API / Software Development Kit. The ARTrail API/SDK consists
of specific programmatic APIs, interface definitions, generated code libraries
and associated tools, which allows you to create software plug-ins or
applications that work along with ARTrail to read, write, update, or delete
certain content from ARTrail libraries (databases). Functionality may also be
developed to augment certain existing capabilities of ARTrail and to facilitate
enhanced work flows between ARTrail and other third-party applications.
Plug-ins or applications developed using the API/SDK may be integrated into the
ARTrail interface or into a third-party application, or may be separate,
stand-alone applications provided they meet all requirements set forth in this
Agreement.
1.2 Responsibility Regarding Work Product. Subject to
the terms of this Agreement, you are entitled to use and share with third
parties any plug-in, application, tool or other work product developed with the
API/SDK that enhances the experience of ARTrail users (“Work Product”). You are
solely responsible for any Work Product that you develop and release. You
hereby agree that you will make your Work Product available only to end users
that have agreed to the following terms in connection with their use of the
Work Product: (i) end users may not use your Work Product for any illegal or
injurious purpose. (ii) Licensee acknowledges and agrees that KG Hawes has no
obligations, responsibilities, or liabilities to End Users of your Work Product.
Licensee’s Work Product must not be intended to or designed to facilitate a
violation of the EULA or this Agreement by End Users, including without
limitation the use policies set forth in the EULA. In the event KG Hawes
reasonably believes Licensee’s Work Product violates this Section 1.2, Licensee
shall, promptly upon written notice and at Licensee’s sole cost, modify and
redistribute the Work Product and use its best efforts to disable or otherwise
prevent End Users from using prior versions of the Work Product that violate
this Section 1.2. In no event will Licensee encourage its End Users to violate,
or instruct its End Users on how to violate, the EULA or this Agreement. You
further agree that you will not grant end users any rights with respect to your
Work Product that are inconsistent, or in conflict, with the terms set forth
herein.
1.3 Prohibited Uses. Without limiting other restrictions in this Agreement, you agree that (i) the API/SDK may not be used to create Work Product that (a) offers or promotes services that may be damaging to, disparaging of or otherwise detrimental to ARTrail or its licensors, licensees, affiliates and partners, (b) transfers, displays or uses content or functionality from ARTrail without creating additional and distinct benefit(s) for ARTrail users, (c) competes with ARTrail in any commercial or non-commercial market, or (d) leverages ARTrail as a hosted application on a web server; and (ii) the API/SDK and Work Product may not be used with demo versions of ARTrail other than for short-term testing and evaluation purposes.
1.4 API/SDK Modifications. KG Hawes reserves the right to modify the API/SDK, and to release subsequent versions. You may be required to use the most recent version of the API/SDK in order to obtain functionality for associated plug-ins and applications. The API/SDK is currently provided free of charge, but KG Hawes reserves the right to charge for the API/SDK (or additional features or functionality thereof) in the future.
1.5 Support. KG Hawes has no obligation to provide you or any users of your Work Product with support, software upgrades, enhancements or modifications to the API/SDK. You understand and agree that you are solely responsible for providing user support and any other technical assistance for your Work Product.
1.6 Access Token. In order to use and access the API, Licensee must obtain API credentials (a“Token”) by contacting KG Hawes technical support. 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 API.
2. LICENSE
2.1 API/SDK License. Subject to the terms and conditions of this
Agreement, KG Hawes grants you a limited, non-exclusive, revocable,
non-transferable license to access and use the API/ SDK solely to (i) develop,
test, display and execute your Work Product; (ii) create functionality to
extract and display ARTrail content in your Work Product; and (iii) distribute
to third parties, or permit third parties to access, your Work Product.
2.2 Restrictions. You will not, and will not permit
any person, directly or indirectly, to (i) reverse engineer, disassemble,
reconstruct, decompile, translate, modify or copy the API/SDK, other than as
explicitly permitted hereunder (except to the extent the foregoing restriction
is expressly prohibited by applicable law notwithstanding this limitation),
(ii) create derivative works of the API/SDK or any aspect or portion thereof,
including without limitation, source code and algorithms, or (iii) distribute
or otherwise disseminate the API/SDK by any means or in any form, except as an
integral part of your Work Product. Except as expressly set forth in this
Agreement, you may not make any use of the API/SDK.
2.3 Trademark License. Subject to the terms of this Agreement, KG Hawes grants you a limited, non-exclusive, revocable, non-transferable license to display the ARTrail trademark solely for the purpose of attributing the source of the API/SDK and indicating that you used the API/SDK in creating your Work Product. You may not use the ARTrail trademark in a manner that creates or reasonably implies endorsement or sponsorship by KG Hawes. You shall obtain our written permission prior to each specific use of the ARTrail trademark. All use by you of the ARTrail trademark (including any goodwill associated therewith) shall inure to the benefit of KG Hawes. At no time during or after the term of this Agreement shall you challenge or assist others to challenge the ARTrail trademark or the registration thereof by KG Hawes, nor shall you attempt to register the ARTrail trademark or brand identifiers (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to the ARTrail trademark.
3. WARRANTY, DISCLAIMER. You represent and warrant to KG Hawes that: (i) any Work Product developed by you or your contractors using the API/SDK is your original work, and such Work Product shall not infringe or violate the intellectual property or proprietary rights of any third party; and (ii) our and our sublicensees’ and affiliates’ use of your Work Product as contemplated herein shall not violate the intellectual property or proprietary rights of any third party.
3.1 NO SERVICE LEVEL AGREEMENT. KGHawes shall use commercially reasonable efforts to ensure the availability of the API to Licensee. Notwithstanding the foregoing, KG Hawes does not guarantee any uptime, availability, performance, or integrity of the API. Moreover, KG Hawes shall not be liable to Licensee or its End Users for the unavailability of the API or the failure of the API to perform in accordance with its specifications. Licensee shall not represent to its End Users any availability or performance levels with respect to the API or the Services.
4. ARTRAIL APPLICATION DEVELOPMENT. You acknowledge and agree that KG Hawes may create features, applications, content, and other products or services that may be similar to your Work Product, and nothing in this Agreement will be construed as restricting or preventing KG Hawes from creating and fully exploiting such applications, content and other items, without any obligation to you. If you elect to provide us with any suggestions or feedback, you hereby assign all right, title and interest in and to such suggestions or feedback to KG Hawes, and acknowledge that we will be entitled to use, implement and exploit any such suggestions or feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting or compensation to you.
5. PROPRIETARY RIGHTS. KG Hawes shall own and retain
all right, title and interest, including without limitation all intellectual
property rights, in and to (i) the API/SDK and any and all elements and
components thereof, including content, technology, software code, user
interfaces and any derivative works and/or compilations thereof; (ii) the
ARTrail trademark; and (iii) any feedback provided by you (including
suggestions, comments, improvements, ideas, etc.) about or relating to ARTrail,
ARTrail plug-ins, the API/SDK, or any applications that KG Hawes may be
developing (collectively, “KG Hawes Property”). You shall own and retain all
right, title and interest in and to your Work Product, except with respect to
any KG Hawes Property that has been incorporated therein.
6. TERMINATION. Without prejudice to any other rights or remedies that we may have, KG Hawes may terminate the license granted hereunder (i) if Licensee fails to comply with any of the terms and conditions of this Agreement upon written notice or (ii) for convenience upon thirty (30) days prior written notice to Licensee. In such event, Licensee shall discontinue any further use, and destroy all copies, of the API/SDK and Documentation in its possession or control. Sections 1.2, 1.3, 1.5, 4, 5, 6, 7, 8 and 9 shall survive any termination of this Agreement.
7. NO WARRANTY. THE API/SDK AND DOCUMENTATION ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL KG HAWES OR ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES (COLLECTIVELY “KG HAWES PARTIES”) BE LIABLE OR RESPONSIBLE FOR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE API/SDK OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF KG HAWES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE KG HAWES PARTIES’ TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES OF ANY KIND AND TYPE (REGARDLESS OF WHETHER BASED IN CONTRACT OR TORT) SHALL NOT EXCEED THE LICENSE FEE (IF ANY) PAID BY YOU FOR THE API/SDK. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
9. INDEMNIFICATION. Licensee, at its own expense, shall defend, indemnify and hold harmless KG Hawes and its affiliates from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses, including reasonable attorneys’ fees (any or all of the foregoing hereinafter referred to as “Losses”), insofar as such Losses (or third party actions in respect thereof) are based on, arise out of, or are related to (i) a breach by Licensee of any representation, warranty, covenant or agreement made by it hereunder; (ii) the use, operation, promotion, distribution or license of the Work Product by Licensee or its employees, contractors or agents; or (iii) claims brought by third parties to the extent arising out of the Work Product.
10. EXPORT CONTROLS. Licensee shall comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control in connection with Licensee’s use of the API/SDK.
11. INJUNCTIVE RELIEF. Licensee agrees that KG Hawes will have the right to obtain an injunction against any unauthorized use of the API/SDK by Licensee, in addition to any other rights and remedies to which KG Hawes may be entitled.
12. SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision shall be adjusted to the minimum extent necessary for validity or enforceability, and in any event, the remaining provisions will nevertheless remain in full force and effect.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding and agreement between KG Hawes and you with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications with respect thereto. This Agreement may not be modified, except to the extent of a written agreement to do so by an authorized representative of KG Hawes.
14. CHOICE OF LAW. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the internal laws of the State of Washington, without regard to its principles of conflicts of law.
15. NO ASSIGNMENT. Licensee shall not assign, sublicense or delegate any of its rights or obligations under this Agreement to any third party without the prior written consent of KG Hawes. Any assignment, sublicense or delegation in violation of this provision shall be null and void.
16. ACKNOWLEDGMENT. The Licensee affirms that Licensee has read this Agreement, understands it, Is authorized to accept the terms on behalf of the licensee’s company or legal entity creating the Work Product, and agrees to be bound by its contents.