APPLICATION PROGRAMING INTERFACE (API) AGREEMENT
PLEASE READ THIS API AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SYNCPLICITY APIs OR ANY ACCOMPANYING DOCUMENTATION (E.G., API SPECIFICATION). THIS AGREEMENT ESTABLISHES THE TERMS AND CONDITIONS UNDER WHICH SYNCPLICITY, LLC (“SYNCPLICITY”) WILL PERMIT YOU TO USE THE SYNCPLICITY APIs AS PART OF YOUR SOFTWARE APPLICATION, AND TO ACCESS AND USE THE SYNCPLICITY SERVICE IN CONJUNCTION WITH YOUR SOFTWARE APPLICATION. FURTHER, UNDER APPENDIX A (SOFTWARE APPLICATION TESTING AGREEMENT) TO THIS AGREEMENT, YOU GRANT SYNCPLICITY THE RIGHT TO TEST OR OTHERWISE EVALAUTE YOUR SOFTWARE APPLICATION FOR USE WITH THE SYNCPLICITY SERVICE. AS USED HEREIN INDIVIDUALLY SYNCPLICITY OR YOU ARE A “PARTY”, AND COLLECTIVELY SYNCPLICITY AND YOU ARE “PARTIES” UNDER THIS AGREEMENT.
BY CLICKING ON THE “I AGREE” BUTTON BELOW OR BY INSTALLING OR USING THE SYNCPLICITY APIS YOU REPRESENT ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND UNCONDITIONALLY AGREE TO BE BOUND BY ALL OF ITS TERMS. IF YOU DO NOT ACCEPT ALL OF THE TERMS OF THIS AGREEMENT SYNCPLICITY IS UNWILLING TO LICENSE TO YOU THE SYNCPLICITY APIs AND YOU SHOULD NOT CLICK THE "I ACCEPT" BUTTON OR INSTALL OR USE ANY PART OF THE SYNCPLICITY APIs. IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS AND ALL OF ITS USERS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, “YOU” AND “YOUR” REFER HEREIN TO THAT BUSINESS.
A. “APIs” – means a collection of routines, classes, function parameters, protocols, related libraries and other instructions provided in Source Code or Object Code form.
B. “API Specification”- means a written description of routines, classes, function parameters, protocols, related libraries and other instructions that allow a Software Application to interoperate with the Syncplicity Service, as substantially described at <https://developer.syncplicity.com/>.
C. “Development Key”- means a numeric or alpha-numeric value, that in some cases may be comprised of the public key and private key pair, provided to You to allow for testing of the Syncplicity Service by a Software Application.
D. “End User” or “End Users”- means a person(s) who is sublicensed to perform the Syncplicity APIs under the terms of this Agreement.
E. “Feature” or “Features”- means one or more of- i) the Development Key, ii) the Production Key, iii) API Specification, or iv) the Syncplicity Service as used in conjunction with the Software Application.
F. “Feedback” - means suggestions, comments, or data provided by You to Syncplicity and related to the Syncplicity APIs.
G. “Fork” or “Forking”- mean the act of creating a distinct and/or separate set of APIs that are based upon, derived from, or a modification of the Syncplicity APIs.
H. “Object Code” - means Source Code that has been interpreted, compiled or otherwise translated into a machine readable form.
I. “Production Key” – means a numeric or alpha-numeric value, that in some cases may be comprised of the public key and private key pair, provided to You to allow access to the Syncplicity Service by a Software Application.
J. “Syncplicity API(s)” – means a collection of routines, classes, function parameters, protocols, related libraries and other instructions provided in Source Code or Object Code form that allow access to or interoperability with the Syncplicity Service by a Software Application, as substantially described at and made available via <https://developer.syncplicity.com/>.
K. “Syncplicity Service”- means a service made available to You through the Syncplicity APIs and substantially described at <http://www.syncplicity.com>.
L. “Software Application”- means software authored by You in Object Code or Source Code form that accesses or otherwise interoperates with the Syncplicity Service via the Syncplicity APIs.
M. “Source Code”- means computer code in a human readable form and as such computer code that has not been interpreted or compiled.
N. “Use”- means to perform, sublicense, and reproduce as defined under 17 U.S.C. § 101 et seq. or other applicable copyright statute. For avoidance of doubt, no right of distribution is granted herein.
O. "You" or "Your"- means the legal entity or business on whose behalf the terms of this Agreement are accepted.
II. Acceptance of Software Applications for Use with the Syncplicity APIs
A. Software Application Approval Process. Syncplicity reserves the right to approve (or not to approve) any Software Application that will Use the Syncplicity APIs. This approval process, and its requirements, is described at <https://developer.syncplicity.com/>. Failure to receive approval from Syncplicity for a particular Software Application’s Use of the Syncplicity APIs will result in Your Use of the Syncplicity APIs being unlicensed under certain subsections of Section III (Licenses and Restrictions Related to the Use of Syncplicity APIs) of this Agreement.
B. Third-Party Software Application Approval Process. To the extent that a Software Application is posted, hosted, or otherwise made available by a third party, the terms under which this third party makes this Software Application available shall not be binding upon Syncplicity and the Software Application Approval Process described in Section II.A.
III. Licenses and Restrictions Related to the Use of Syncplicity APIs
A. Syncplicity API License for Production. Subject to Section II.A (Software Application Approval Process), Syncplicity grants You a world-wide, non-exclusive, royalty free, terminable license, under Syncplicity copyrights, to Use the Syncplicity APIs in conjunction with Your Software Application, where Your Use is enabled via a Production Key.
B. Syncplicity API License for Testing. Syncplicity grants You a world-wide, non-exclusive, royalty free, terminable license, under Syncplicity copyrights, to Use the Syncplicity APIs in conjunction with Your Software Application, where your Use is enabled via a Development Key.
C. Syncplicity API Specification License. Syncplicity grants You a world-wide, non-exclusive, royalty free, terminable license, under Syncplicity copyrights, to perform, and reproduce the API Specification to assist with enabling interoperability between Your Software Application and the Syncplicity Service.
D. Production Key License. Subject to Section II.A (Software Application Approval Process), Synplicity grants to You a world-wide, non-exclusive, royalty free, terminable license, under Syncplicity intellectual property rights, to use a Production Key for the purpose of identifying a Software Application that utilizes certain privileges during the course of accessing the Syncplicity Service as part of a deployment of the Software Application.
E. Development Key License. Syncplicity grants You a world-wide, non-exclusive, royalty free, terminable license, under Syncplicity intellectual property rights, to use a Development Key for the purpose of identifying a Software Application that utilize certain privileges during the course of accessing the Syncplicity Service as part of testing the Software Application.
F. Feedback Ownership and Licenses. You acknowledge and agree that all Feedback will be the sole and exclusive property of Syncplicity. You hereby assign to Syncplicity and agree to assign to Syncplicity all of your right, title, and interest in and to all Feedback, including all intellectual property rights therein. At Syncplicity’s request and expense, you will execute documents and take such further acts as Syncplicity may reasonably request to assist Syncplicity to acquire, perfect and maintain its intellectual property rights and other legal protections for the Feedback. If any such rights in Feedback are not assignable to Syncplicity for any reason, you hereby grant to Syncplicity and its successors a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, perpetual and irrevocable license, under all of Your intellectual property rights, to implement the Feedback in Syncplicity products and services.
G. Restrictions Pertaining to the Syncplicity API License. Syncplicity retains legal title to the Syncplicity APIs under this Agreement, and You agree not to delete or alter any copyright or other proprietary notices signifying Syncplicity’s ownership of this legal title. Additionally, You agree to the following license restrictions- The right of sublicense granted herein is restricted to the sublicensing of the right to perform by You solely to End Users of the Software Application. For avoidance of doubt, in no event will you make available the Syncplicity APIs in Source Code form to an End User or any other party. Additionally, no right- i) to distribute, ii) to publically display, or iii) to create derivatives of the Syncplicity APIs is granted hereunder. Further, You will sublicense End Users only on terms no less restrictive than the terms contained in this Agreement.
H. Restrictions Pertaining to the API Specification License. Syncplicity retains legal title to the API Specification under this Agreement and You agree not to delete or alter any copyright or other proprietary notices signifying Syncplicity’s ownership of this legal title. Further, You agree to the following license restrictions- You shall not make an unreasonable number of reproductions of the API Specification. Further, for avoidance of doubt, no right- i) to distribute, ii) sublicense, iii) to publically display, or iv) to create derivatives of the API Specification is granted hereunder.
Warranty, Disclaimer, Indemnity, and Limitation on Liability
A. Warranty Related to Forking. You warrant that You have not and will not engage in Forking or otherwise attempt to modify or reverse engineer the Syncplicity APIs. Further, You warrant that You have not or will not distribute a set of APIs or a development kit that is based upon or otherwise a modification of the Syncplicity APIs.
B. Warranty Related to Branding. You warrant that You will follow or otherwise adhere to the Trademark Guidelines and Legal Considerations found at <http://brand.emc.com/trademark-guidelines-and-legal-considerations/> pertaining to the use of Syncplicity or EMC Corporation trademarks (registered or otherwise), logos, or word marks (collectively “Marks”) and the good will associated therewith. Further, you acknowledge that unless separately negotiated with Syncplicity or EMC Corporation, no license (implied or explicit) to use the Marks and the good will associated therewith is provided herein. For avoidance of doubt, approval of Your Software Application (see Section II (Acceptance of Software Applications for Use with the Syncplicity APIs)) does not entitle You to use the Syncplicity or EMC Corporation Marks, and the goodwill associated therewith, beyond what is described in the above referenced Trademark Guidelines and Legal Considerations.
C. Disclaimer of Warranty. Unless otherwise agreed to in writing between the Parties, the Syncplicity APIs are provided “AS IS”, without warranty of any kind. SYNCPLICITY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Syncplicity makes no representations or warranties regarding the suitability of the Syncplicity APIs for your intended requirements or purposes including for use with Your Software Application. Further, Syncplicity makes no representations or warranties regarding the integrity of data that You transfer store, obtain or receive through use of the Syncplicity APIs. Syncplicity is not obligated to maintain or support the Syncplicity APIs, or to provide you with updates, fixes, or services related thereto. You assume all risk arising from use of the Syncplicity APIs, including, without limitation, the risk of damage to Your computer system, Software Application, or the corruption or loss of data.
D. Indemnity. You agree to defend, indemnify, and hold Syncplicity and its officers, directors, employees and agents harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable attorney’s fees, arising out of or in any way connected with Syncplicity’s use of the Software Application, your access to or use of the Syncplicity APIs, Syncplicity Service, or your breach of the terms of this Agreement.
E. Limitation of Liability. IN NO EVENT WILL SYNCPLICITY BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR the cost of procuring substitute products ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF SYNCPLICITY APIs, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SYNCPLICITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN ANY CASE, SYNCPLICITY’S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED $50. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
A. Confidentiality. As used herein, Confidential Information means: (a) any Feedback that you provide to Syncplicity pursuant to Section III.F (Feedback Ownership and Licenses), and (b) any Syncplicity business or technical information that is disclosed to You in connection with this Agreement, including, but not limited to, any information relating to Syncplicity’s plans, business opportunities or research and development. Confidential Information excludes any information that: (i) is or becomes generally known to the public other than as a result of Your breach of this Agreement; (ii) is rightfully known to You at the time of disclosure without restrictions on use or disclosure; (iii) is independently developed by You, without access to or use of any Confidential Information; or (iv) is rightfully obtained by You from a third party, who has the right to disclose it and who discloses it without restrictions on use or disclosure. You will maintain all Confidential Information in strict confidence and will not disclose Confidential Information to any third party. You will not use Confidential Information, except as necessary for the performance of this Agreement.
Term and Termination
A. Term. This Agreement will commence on the date You accept its terms by accessing or using the Syncplicity APIs or the API Specification and will continue until terminated as provided in Section IV.B.
B. Termination Generally. Syncplicity may terminate this Agreement and any licenses granted hereunder immediately if you breach any term or condition in this Agreement. Specifically, at its sole discretion, Syncplicity may terminate the Agreement and/or Your ability to use one or more of the Features. At its sole discretion, Syncplicity may reinstate the Features where compliance with one or more of the terms referenced in this section has been demonstrated by You. You may terminate the Agreement at any time by ceasing the Use of the Syncplicity APIs and disabling Your Software Application’s ability to Use the Syncplicity APIs.
C. Termination for Violation of Terms of Service. Syncplicity may terminate this Agreement and/or the Features licensed herein immediately for any violation of the Syncplicity Terms of Service found at <https://www.syncplicity.com/legal/terms-of-service/>. Example bases for termination include a violation of Sections 4 (Use of Services and Software), or 7 (Compliance with Laws and Acceptable Use) therein. For avoidance of doubt, a Feature is a Product within the meaning of the Syncplicity Terms of Service.
D. Emergency Suspension. If Syncplicity becomes aware of a situation where Your violation of the terms of the Agreement may disrupt its delivery of the Syncplicity Services to third-parties (e.g., customers of Syncplicity) generally, or in the event Syncplicity detects unauthorized third-party access to the Syncplicity Service (collectively referenced herein as an “Emergency”), Syncplicity may immediately suspend the offending use or Use. Any such suspension shall be to the minimum extent and duration needed to respond to the Emergency. At its sole discretion, Syncplicity may reinstate the Use or use where the Emergency has been resolved.
E. Survival Upon Termination. Upon termination of this Agreement, your licenses for the Syncplicity APIs, the API Specification, Product Key(s) and Development Key(s) under Section III (Licenses and Restrictions Related to the Use of Syncplicity APIs) shall immediately terminate. Sections- III.F (Feedback Ownership and Licenses), IV (Warranty, Disclaimer, Indemnity, and Limitation on Liability), V (Confidentiality), and VII (Miscellaneous) will survive any termination of this Agreement.
A. Injunctive Relief. You acknowledge that a violation of the sections contained in this Agreement may cause irreparable harm to Syncplicity not adequately compensable by monetary damages. In addition to other relief, it is agreed that temporary and permanent injunctive relief may be an appropriate remedy to prevent any actual or threatened violation of such sections or to enforce such section according to their terms.
B. No Support. Unless otherwise agreed to in writing, Syncplicity shall not be responsible for providing service (or level of service), support or maintenance to You (or a user of Your Software Application) for the Syncplicity APIs.
C. Attributions. You shall maintain any attributions (e.g., “© 2014 Syncplicity LLC”) denoting Syncplicity or others as the author of the APIs (e.g., Syncplicity APIs) or the API Specification. Failure to maintain such attributions shall be a material breach of this Agreement.
D. Export Laws. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Syncplicity APIs nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
E. Government Users. Any use, duplication, or disclosure of the Syncplicity APIs by the U.S. government is subject to the restrictions as set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. Manufacturer is Syncplicity, LLC.
F. General. This Agreement will be governed by and construed in accordance with the laws of the State of Massachusetts, without regard to or application of conflicts of law rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Syncplicity’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. Syncplicity may assign this Agreement in whole or part. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the address you provide to us upon registering with Syncplicity, and if to Syncplicity to the following address: Syncplicity, Attn: Legal, 2811 Mission College Blvd., Santa Clara, CA 95054. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Syncplicity have executed a separate agreement.
G. Questions. Questions related to this Agreement may be sent to: Syncplicity, LLC, 2811 Mission College Blvd., Santa Clara, CA 95054.
H. Integration; Order of Precedence. Unless otherwise agreed to in writing between the Parties, this Agreement, together with the exhibits (if applicable), constitutes the entire agreement, and supersedes any and all prior agreements, between the Parties with regard to the subject matter hereof. This Agreement may not be amended or modified except by a writing signed by both Parties hereto. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any order, acknowledgement or confirmation or other document issued by You, unless the Parties mutually agree in writing that such terms and conditions shall modify, supersede and control in the event of any inconsistency with this Agreement.
I. Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties. The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
J. Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party- i) provides the other Party with prompt notice of the nature and expected duration of the event, ii) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, iii) provides periodic notice of relevant developments, and iv) provides prompt notice of the end of such event.
K. Press Release; References. Unless a written waiver has been agreed to between the Parties, neither Party will issue a public statement or press release regarding this Agreement without the prior consent of the other Party. Notwithstanding the foregoing, Syncplicity, during the Term, will be permitted to list You a customer and use Your standard logo for Syncplicity’s promotional and marketing use. Upon the request of Syncplicity, You will cooperate with Syncplicity to prepare a written description of Your use of the Syncplicity Services or Syncplicity APIs, and Syncplicity may provide such description to other prospective customers. Syncplicity will submit the form of such description to You for prior written approval prior to any such use. Syncplicity will follow Your brand usage requirements as provided by You and updated from time to time.
L. Syncplicity’s Right of Modification. At Syncplicity’s discretion, Syncplicity may modify the terms of this Agreement without notice to You. Any such terms will be effective on the date You use the Syncplicity Service after the terms have been modified, and your use of the Syncplicity service serves as consideration for this modification.
SOFTWARE APPLICATION TESTING AGREEMENT
I. General Terms and Conditions
A. Purpose of the Software Application Testing Agreement. As part of the Software Application Approval Process (see Section II.A (Software Application Approval Process)) of the Agreement, You are required to grant Syncplicity a license to test Your Software Application for the purposes of determining the interoperability of Your Software Application with the Syncplicity Service.
II. Licenses Granted to Syncplicity for Testing of the Software Application
A. Testing License Granted to Syncplicity Related to the Software Application. You grant Syncplicity a non-exclusive, world-wide, royalty-free license, under Your copyrights, to perform, reproduce, and display Your Software Application for the purpose of internal testing and evaluation to determine the interoperability of Your Software Application with the Syncplicity APIs and the Syncplicity Service.
B. Data License Granted to Syncplicity. You grant Syncplicity a non-exclusive, world-wide, royalty-free license, under Your intellectual property rights, to use the data generated by Your Software Application for the purposes of- i) the internal testing and evaluation to determine the interoperability of Your Software Application with the Syncplicity APIs and the Syncplicity Service, and ii) to improve the Syncplicity APIs and the Syncplicity Service.
C. Restrictions on the Licenses Granted to Syncplicity Under this Section. For avoidance of doubt, this Section II does not enable Syncplicity to distribute or other provide the results of the testing and evaluation of Your Software Application (or data generated by Your Software Application) to third parties.
A. Warranty of Title. You warrant that You are legally entitled to grant the above licenses (see Section II (Licenses Granted to Syncplicity for Testing of the Software Application)), and, unless otherwise stated by You, that You are the author of the Software Application.
B. Warranty Against Malware and Viruses. You warrant that the Software Application does not contain any Malware, Viruses, Trojans Horses, or other software designed to disrupt computer operation, to gather sensitive information, or to gain access to computer systems operated by or on behalf of Syncplicity.
A. Interpretation of the Software Application Testing Agreement. Unless stated otherwise in this Software Testing Agreement, the definitions and terms of the Agreement are incorporated by reference into this Software Application Testing Agreement and shall have the meaning(s) ascribed to them under the Agreement.