BY SUBMITTING AN APPLICATION, YOU (AND THE ORGANIZATION THAT YOU REPRESENT, IF ANY) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND TO THE TERMS OF THIS AGREEMENT AND WILL COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO COMPLY WITH THIS AGREEMENT, YOU HAVE NO RIGHT TO USE THE API.
(a) Granted To You. The API is an application that allows you to interface with the Company’s database to access, submit and view photographs, images, graphics, text, audio/visual works, and/or videos (the “Content”). Subject to the terms of this Agreement and provided that the Company approves your application, the Company grants you a revocable, non-exclusive, non-transferable, non-assignable, limited license to: (i) implement the API in your application so that it (your application) can access and query the Content, and (ii) display the Content to consumers for their own personal viewing. In other words, you may develop, distribute, or host an application (e.g., a web site, mobile device application, personal computer application) that is designed to access and query the Content solely via the API. This license is without the right to sub-license.
(b) Granted To End Users. By way of a separate license, the Company grants consumers who utilize your application (the “End Users”) a revocable, non-exclusive, non-transferable, non-assignable, limited license to view the Content as presented to the End Users for their own personal use. This license is also without the right to sub-license.
(c) Non-Commercial Use Only. You may only use the Service in connection with a non-commercial application. Your application must be free of charge, and you may not sell or monetize your application in any manner, including, but not limited to, charging end users to obtain your application or displaying advertisements via your application or banner advertisements on or around the Content.
(d) Pre-Approval Required. The license described in 1.1(a) above is contingent on you submitting all application-related materials that are requested by the Company and the Company subsequently approving your application. The Company may approve or reject your application in its sole discretion. The approval of your application by the Company shall not constitute an endorsement or legal review of your application.
1.2. General Requirements and Restrictions. The above license is subject to the following general restrictions:
(a) you shall not submit any false or misleading information in your registration application to access and use the Service;
(b) any application you develop utilizing the API shall be designed to access and use the Content only as allowed by this Agreement;
(c) you shall not access or attempt to access the Company’s Content database other than through the API;
(d) you shall not falsify or alter any unique identifier (e.g., API Key (defined below)) in, or assigned to, your application, or otherwise obscure or alter the source of queries coming from your application;
(e) if requested by the Company, you shall provide instructions on how the Company can access any application you have developed utilizing the Service;
(f) if you implement the API on a restricted web site, you shall provide the Company with a log-in name and password that will allow the Company to access the web site;
(g) you shall not reproduce, modify, distribute, decompile, disassemble, or reverse engineer any portion of the Service, other than as provided in this Agreement;
(h) you shall not violate or attempt to violate the security of the Service (e.g., accessing a server or account you do not have authorization for; attempting to test, scan, probe, or hack the vulnerability of the API or any network used by the API; attempting to circumvent any authentication measures; overloading, flooding, or pinging the API);
(i) you shall not transit or otherwise make available any material that contains a software virus or any other computer code, files, or programs designed to: (i) interrupt, destroy, or limit the functionality of any equipment (including software and hardware), or (ii) spy on the activities of others;
(j) you shall not use the Service in a manner that, in the Company’s sole reasonable discretion, exceeds reasonable request volumes, constitutes excessive or abusive use, or otherwise fails to comply with or is inconsistent with this Agreement;
(k) you shall communicate the End User terms in Section 1.5 to End Users and shall obtain their agreement to such terms via a click-wrap, browse-wrap or written agreement;
(l) the between you and any End User shall specifically state that the Company:(i) is a third party beneficiary of the agreement; and (ii) shall have the right to enforce the terms of the agreement;
(m) you shall not use the Service in any manner that exposes the Company to any harm or liability of any nature;
(n) you shall not make any representations or warranties about the Service to any third party; and
(o) you shall not use the Service in violation of any federal, state, or local law, rule or regulation, whether now existing or enacted in the future, or in any manner that would cause the Company to violate any such laws, rules, or regulations; and
1.3 Content-Related Restrictions. The above license is subject to the following restrictions regarding the Content:
(a) you may not remove or affix your own watermarks, attributions (e.g., copyright) or other identifying notes on, within or embedded in the Content;
(b) you shall not retain or store any Content for any reason;
(c) you may only provide the Content to End Users on an “as is” basis and pursuant to the terms of this Agreement; and
(d) you shall remove any Content immediately upon receipt of email or other notice from the Company.
1.4 Technical Restrictions.
(a) Calls Per Day. Your free use of the Service is limited to a set number of calls to the API per day per API Key. If you exceed this per-day limit, the API will temporarily stop working for you. If you exceed the limit on more than one (1) occasion, your access to and use of the Service may be permanently terminated. If you would like to request an increased volume of API calls for your API Key, please send your request (including your contact information and description of intended use to email@example.com. The Company reserves the right to change the call per day limit at any time in its sole discretion. Your account information set forth on the developer website will contain your per day call limit.
(b) Throttle Rate. The rate at which the API may be called (the “Throttle Rate”) will be set forth in your account information on the developer website. You will not attempt to circumvent any technical measures we may put in place to enforce the Throttle Rate. The Company reserves the right to change the Throttle Rate at any time in its sole discretion.
1.5 End User Terms. The following terms (the “End User Terms”) must be clearly and unambiguously communicated to, and agreed to by, End Users:
(a) License. By using this application to obtain the Content from the Company’s database, End Users are entering into an agreement the Company governing their use of the Content. End Users may only view the Content for their own personal viewing pleasure, and may not:
(i) publish, offer, sell, license, transmit, distribute, reproduce, or modify the Content in any manner;
(ii) retain or store any Content
(iii) use the Content as part of a CD-ROM disc or other stand-alone product;
(iv) use the Content in any manner that exposes the Company to any harm or liability of any nature; and
(v) use the Content in violation of any federal, state, or local law, rule, or regulation, whether now existing or enacted in the future.
(b) The Content. The Content may be changed, updated, or deleted without notice at any time and for any reason.
(c) The API. End Users may only access the API solely as necessary to obtain the Content from the Company’s database in accordance with these End User Terms.
(d) Trademarks. End Users are not granted any license in connection with the Company’s trade names, logos, and other trademarks and service marks, and may not copy, reproduce, publish, or display them.
(e) Termination. The Company may terminate the license to access and view the Content at anytime. In the event that you lose the rights licensed by the Company under this Agreement, End Users will no longer be able to obtain the Content from the Company’s database via your application;
(f) Representations. End Users represent and warrant that they have the authority to enter into an agreement with the Company governing their use of the Content and that they will comply with these End User Terms.
(g) Disclaimer of Warranties. The Content is provided to End Users on an “as is” basis without warranties of any kind.
(h) Limitation on Liability. The Company will not be liable to End Users in any manner in connection with their use of the Content.
(i) Indemnification. End Users shall indemnify, defend, and hold harmless the Company from and against all claims, actions, and judgments arising out of their use of the Content.
(j) Third Party Beneficiary. The Company shall be a third party beneficiary of any agreement between you and any End User, and shall have the right to enforce the terms of any such agreement.
1.6 API Key. After approval of your application for access to the Service, you will be assigned a unique key that is associated with your Company developer account (the “API Key”). The API Key enables your application to access and use the Service on a nonexclusive basis. All calls to the API made by your application must include your API Key. You must keep you API Key confidential and you may not share it with any third party. You will use only a single Mashery.com account to request API Keys from the Company. You are solely and entirely responsible for all uses of the Service occurring under your API Key. The Company will only issue one (1) API Key per developer or organization.
1.7 Violations. If you become aware of a breach of any part of this Agreement by you or any End User, you shall take prompt commercially reasonable actions to remedy such violation. Further, you shall notify the Company of such violation via firstname.lastname@example.org.
1.8 Fee for Use. At this time, the Service is offered and provided without charge; however, the Company reserves the right to implement a fee and payment terms for use at any time in its sole discretion. In the event that the Company elects to charge a fee for the Service, you will not be charged for the Service unless we obtain your prior agreement to pay such charges. You may elect to stop using the service rather than incur fees.
1.9 The Content. The Content accessible via the API may be changed, updated, or deleted without notice for any reason in the Company’s sole discretion.
1.10 Future Versions. The Company reserves the right to release subsequent versions of the Service and to require you to obtain and use the most recent version.
1.11 Availability/Support. The Company has no obligation to provide you any support or maintenance. Furthermore, the Company shall not be liable for losses or damages you may incur due to any errors or omissions in the Content, or due to your inability to access the Content due to disruption of the Service. If the Company chooses in its sole discretion to provide you support or maintenance, such service shall be provided “as-is”, without any warranties whatsoever.
1.12 Featured Application. The Company may feature your application via any medium, including its online properties. At its sole discretion, the Company may select your application for featuring, in which case the posted content may include: (i) your name or the name of the entity you represent; (ii) your trade names, logos, trademarks, or service marks, or the trade names, logos, trademarks, or service marks of the entity that you represent; (iii) a screen shot of your application; (iv) a short text description; and (v) a link to your application’s web site. If your application is selected, you grant the Company a non-exclusive, worldwide, royalty-free limited license to use, copy, reproduce, publish, perform and distribute the content described above (including any trade names, logos, trademarks, or service marks) for purposes of featuring your application.
2.1 No Affiliation. You may not suggest to users in any manner that you are affiliated or endorsed by the Company, including, but limited to, by using any trademarks of the Company within your application unless permitted by this Agreement or authorized by the Company. You may include a link to the website applicable to the Content you make available in response to an end user query (a list of such sites are listed at http://cheezburger.com/sites); provided that you include the following statement (text only): “Content provided by license from the Cheezburger Network—this application is not offered nor endorsed by Cheezburger, Inc.”
(a) License. The Content may include the trade names, logos, and other trademarks and services marks of the Company (collectively, “Trademarks”). You may not remove, alter, or exploit the Trademarks in any manner. The Trademarks are the property of the Company, and you shall not, by virtue of this Agreement, obtain or claim any right, title, or interest to or in the Trademarks. By way of example and not limitation, you may not:
(i) display a Trademark in any manner that implies a relationship or affiliation with, sponsorship, or endorsement by the Company (other than your involvement with the Service), or could reasonably be interpreted to suggest editorial content has been authored by, or represents the views or opinions of the Company or Company personnel;
(ii) display a Trademark on your website (except as necessary to describe that your application is using Company content) or any domain name;
(iii) display a Trademark in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene, or otherwise objectionable to the Company in its sole discretion;
(iv) display a Trademark in connection with any violation of law or regulation;
(v) use the Trademarks to disparage the Company or its services;
(vi) remove, modify, obscure or alter these Trademarks;
(vii) incorporate any Trademark (or confusing similar mark) in your application name or website;
(viii) apply for any trademark that is identical or confusingly similar to the Trademarks.
You may use the Trademarks only as necessary to describe that your application is using the Company’s content or API by way of a license (e.g., “An iPhone application that allows you to view Cheezburger™ content. XYZ is not affiliated with the Cheezburger Network.”; provided that you comply with the restrictions herein and do not use such Trademarks in a manner to brand your application or suggest to an end user that your application was developed by the Company. Such limited license to use the Trademarks is revocable at anytime by the Company. You understand and agree that the Company has the sole discretion to determine whether you are complying with this Section 2, and you further agree to comply with any guidelines the Company may enact with respect to its Trademarks. If the Company determines that you are using its Trademarks in violation of this Agreement, it may suspend or terminate your account. Additionally, the Company may provide you instructions on how to comply with this Section 2, and you agree to comply with such instructions.
3. TERM AND TERMINATION.
3.1 Term. The term of this Agreement (the “Term”) shall commence on the date upon which your API Key is issued and shall continue in full force and effect until terminated herein.
3.2 Suspension/Termination. The Company may suspend or terminate all or any aspect of the Service, including use of Company Trademarks, at any time. The Company may suspend or terminate your access to and use of the Service at any time for any reason. You may terminate this Agreement, at any time for any reason, by ceasing to use the Service and the Trademarks, removing the implementation of the API from your application, and deleting all copies of the Content. In the event of termination of the Service, your access and use of the Service, or this Agreement, all licenses shall immediately terminate, you shall remove the API and any Content from your application, and End Users may no longer make use of the Content. Section 6 shall survive the termination of this Agreement.
3.3 Agreement Modifications. You hereby agree that the Company may change, revise, or modify this Agreement at any time in its sole discretion, and that you will review this Agreement on a regular basis. The Company will provide advance notice of changing the “last updated” date above. Your continued use of the Service after notice of changes has been given shall constitute your acceptance of the revised terms. If you do not agree to the changes, you must terminate this Agreement by discontinuing use of the Service.
4.1 To You. In connection with your application, you must submit a working e-mail address. You hereby agree that we may deliver notices to you via that e-mail address. Notices delivered via e-mail shall be deemed given and received on the transmission date of the e-mail. We may also provide certain notices to you by posting information on the website that describes our API program.
4.2 To the Company. In the event that you need to communicate with the Company, notices should be sent to email@example.com.
5.1 Representations. You represent and warrant to the Company that (i) you are authorized to enter into this Agreement in your individual capacity or on behalf of the entity you represent and (ii) entry into this Agreement shall not violate any outstanding obligation you have to any third party;
5.2 Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY SPECIFICALLY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND ANY CONTENT MADE AVAILABLE BY IT, INLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF YOU IS ADVISED OF THE PURPOSE), WARRANTIES AGAINST INTELLECTUAL PROPERTY AND OTHER INFRINGEMENT AND THE IMPLIED WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OR TRADE. THE COMPANY SPECIFICALLY DISCLAIMS ANY CLAIM IN TORT (INCLUDING NEGLIGENCE), IN EACH CASE, WITH RESPECT TO THE SERVICE OR ANY MATERIALS PROVIDED BY THE COMPANY AND ANY OTHER INFORMATION TECHNOLOGY, CONTENT, PRODUCTS OR SERVICES PROVIDED BY THE COMPANY UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
6.1 Confidentiality. Except as permitted herein, you shall not reveal to third parties any material non-public information learned by you in the course of utilizing the Service, including, but not limited to, the terms of this Agreement.
6.2 Limitation on Liability. THE COMPANY WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE IN ANY MANNER, INCLUDING LIABILITIES RESULTING FROM (A) THE USE OR THE INABILITY TO USE THE SERVICE OR MALFUNCTIONS IN THE SERVICE, INACCURACY OR INCOMPLETENESS OF THE UNDERLYING DATA; (B) THE COST OF PROCURING SUBSTITUTE SERVICES; (C) ANY SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6.3 Indemnification. You shall indemnify, defend and hold harmless the Company and any of their officers, affiliates, directors, shareholders, employees and agents, from and against any and all loss, costs damage assessments, injuries, expenses (including but not limited to reasonable attorneys’ fees and costs), claims and liabilities arising out of or incurred due to: (i) your breach of this Agreement, (ii) your use or misuse of the Service, (iii) your negligence, misconduct, misrepresentation to End Users, or (iv) any dispute initiated by an End User that relates to your application. You shall not, without the prior written consent of the Company, settle, compromise or consent to the entry of any judgment that could impose any liability or obligation upon the Company. If the Company is threatened with suit or sued by a third party, the Company may seek written assurances from you concerning your promise to indemnify the Company; and failure to provide such assurances may be considered by the Company to be a material breach of this Agreement. The Company will have the right to participate in any defense by you of any indemnified claim, with counsel of the Company’s choice at your expense.
6.4 Waiver. The Company shall not be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by the Company, and then only to the extent specifically set forth in such writing. A waiver with reference to a particular event shall not be construed as a continuing waiver of any right or remedy as to a subsequent event.
6.5 Severability. If the application of any provision or provisions of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by any court of competent jurisdiction, then: (i) the validity and enforceability of such provision or provisions as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (ii) such provision or provisions shall be reformed without further action by the parties hereto and only to the extent necessary to make such provision or provisions valid and enforceable when applied to such particular facts and circumstances.
6.6 Governing Law/Venue. This Agreement will be governed by and interpreted in accordance with the applicable U.S. federal law and the laws of the State of Washington without regard to choice of law provisions. Each party hereto: (i) consents to and waives any objections to personal jurisdiction, service of process, and venue in the state and federal courts located in King County, Washington, and (ii) agrees that any action or proceeding arising out of or related to this Agreement will be filed and prosecuted only the aforementioned courts. The most prevailing party in any legal action relate to this Agreement shall be entitled to its reasonable attorneys’ fees. You agree that regardless of any statute or law to the contrary, any claim or cause of action brought by you against the Company and arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.7 Independent Contractors. The Company and you are independent contractors under this Agreement, and nothing herein will be construed to create a partnership, joint venture, franchise or agency relationship between the Company and you. Neither party has any authority to enter into an agreement of any kind on behalf of the other party.
6.8 No Third Party Beneficiaries. No other person shall have any rights, interest or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.
6.9 Assignment. You may not assign, delegate, or transfer your rights and obligations under this Agreement to any third party (including but not limited to a successor-in-interest, or pursuant to a sale, merger, or other corporate transaction) without the express prior written consent of the Company. You acknowledge that the Company may assign this Agreement without your consent. All the terms, provisions, and conditions of this Agreement shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors and assigns.
6.10 Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understanding, express or implied or written, among the parties. This Agreement cannot be modified or amended without the written consent of both parties.
6.11 Infringement or Legal Claim Notices. If any third party provides you a legal notice with respect to your application, the Service, or the Content, you will immediately email the Company at firstname.lastname@example.org and describe in detail the nature of the notice. By way of clarification and not limitation, if a third party alleges that any Content violates the copyright rights of such third party, you shall immediately notify the Company. You shall indemnify the Company in accordance with this Agreement if your failure to comply with this paragraph causes the Company to incur any loss, liability or expense.