API LICENSE AGREEMENT
This API License Agreement (“Agreement”) describe the terms and conditions that govern the provision of you and your ("Company") access to and use of the NextRoll API (as defined below) as provided by NextRoll, Inc., on behalf of itself and its Affiliates (collectively, "NextRoll").
Updated September 10, 2019
1. INTRODUCTION. This Agreement governs the use of NextRoll's application programming interfaces, and the accompanying documentation, code and related materials (collectively, the "NextRoll APIs") that provide Company with the ability to programmatically interface with the NextRoll platform (the "NextRoll Service") as well as other functionality as NextRoll may make available from time to time. Please note that, in addition to the terms of this Agreement, you may also be required to become a party to other contract terms elsewhere on the NextRoll websites, in order to use the NextRoll Service, and certain other agreements that may be presented to you with respect to other elements of the NextRoll Service or related opportunities, including those where you click "accept" or "agree" to become a party thereto (each of which are a "Separate Agreement"). The parties hereby acknowledge and agree that all terms and conditions set out in the NextRoll Terms of Service and any applicable addendums apply to Company's use of the NextRoll APIs and are incorporated by reference herein. If there is any conflict between the terms of a Separate Agreement and this Agreement, then this Agreement shall control with respect to your use of the NextRoll APIs and the terms of the Separate Agreement shall take precedence with respect to the subject matter of such Separate Agreement.
2. GRANT OF LICENSE. Subject to Company's full compliance with all the terms and conditions of this Agreement, NextRoll grants Company a limited, non-exclusive, revocable, non-sublicensable, non-transferable license ("License") to use the NextRoll APIs only for the purpose of offering the NextRoll Service to Company's clients through the Company's technology platform ("Company Platform") or for Company’s internal business purposes in connection with the NextRoll Service. No other rights or licenses are granted by NextRoll except as expressly set forth herein.
3. RESTRICTIONS. The License granted in Section 2 is subject to the following restrictions: (a) Company will not attempt to cloak or conceal its identity when requesting authorization to use the NextRoll APIs nor will it use the NextRoll APIs for any reason other than in accordance with the terms and conditions of this Agreement and the Documentation; (b) Company will not transfer, assign, sublicense, sell, rent or lease the NextRoll APIs to any third party; (c) Company will not disassemble, reverse engineer, decompile, modify or alter any part of the NextRoll APIs; (d) Company will not perform any action intended to introduce to NextRoll products or technology any viruses, worms, defects, malware, Trojan horses or any other destructive items; (e) Company will not use the NextRoll APIs for any application that constitutes, promotes or is used in connection with: spyware, adware, or any other malicious programs or code; unsolicited mass distribution of email (spam); hate materials; libelous, defamatory, obscene, abusive or otherwise offensive content; hacking, surveillance or descrambling equipment or services; (f) Company will not use the NextRoll APIs in any manner or for any purpose that violates any law or regulation, or any person's rights, including but not limited to intellectual property rights, privacy or personality rights; (g) Company will not use the NextRoll APIs in any manner that adversely impacts the stability of NextRoll's servers or adversely impacts the behavior of other applications using the NextRoll APIs. Company will use its personal NextRoll user name and password with unique keys issued to you by NextRoll. Company will not share any credential or unique keys information with any person who is not an employee or a contractor of Company who has agreed in writing to be bound by the terms of this Agreement.
4. API COMPLIANCE AND PRODUCT EXPECTATIONS.
(a) SUPPORT. This Agreement, including access or license to the NextRoll APIs, does not entitle Company to any support, upgrades or modifications (collectively, "Support") for the NextRoll APIs. NextRoll may elect to provide Company with Support for the NextRoll APIs, in its sole discretion, and may terminate such Support at any time without notice to Company. Any Support provided by NextRoll shall be subject to the terms of this Agreement and may also be subject to additional terms.
(b) CHANGES TO API. NextRoll may change, suspend, terminate or discontinue any aspect of the NextRoll APIs, including the availability of the NextRoll APIs themselves, at any time without notice.
(c) LIMITING API ACCESS. NextRoll reserves the right to limit the number and/or frequency of the NextRoll APIs requests in its sole discretion. NextRoll may also impose limits that may restrict Company's access to part or all of the NextRoll APIs without notice. NextRoll may post usage limitations at the "Developers" area of its website.
5. INTELLECTUAL PROPERTY. As between NextRoll and Company, the NextRoll APIs, including all intellectual property rights in and to the NextRoll APIs are and shall at all times remain the sole and exclusive property of NextRoll and are protected by applicable intellectual property law and treaties.
(a) No IP Ownership Grant. This Agreement does not include any right for Company to use any trademark, service mark, trade name or any other mark of NextRoll.
(b) Data. Data ownership and usage rights to the data transferred via the NextRoll APIs shall be governed by the terms of the applicable Separate Agreement. Any hashed email addresses collected via the NextRoll API shall be considered Service Data as that term is used in the NextRoll Terms of Service.
6. TERMINATION & EFFECT
(a) This Agreement and all rights to use the NextRoll APIs terminate automatically if: (i) Company violates any of the terms of this Agreement or any Separate Agreement; (ii) NextRoll publicly posts a written notice of termination on http://www.NextRoll.com; (iii) NextRoll sends Company a written notice of termination for any reason; (iv) NextRoll disables Company's access to the NextRoll APIs; or (v) Company is subject to a dissolution, receivership, liquidation, insolvency, conservatorship, consolidation, reorganization, sale of substantially all of its assets, cessation of business, voluntary or involuntary bankruptcy. Any termination of this Agreement shall also terminate the license granted to Company to use the NextRoll APIs hereunder.
(b) Company hereby agrees that upon any termination of this Agreement, Company shall destroy and remove from all computers, hard drives, networks and other storage media all copies of the NextRoll APIs, and shall so certify to NextRoll that such actions have occurred. NextRoll shall have the right to inspect and audit Company's facilities to confirm the foregoing. Sections 4, 5, 6(b), 7, 8, 10, 11, and 12 shall survive termination of this Agreement.
7. PROPRIETARY INFORMATION. Company acknowledges that, in the course of accessing the NextRoll APIs and exercising its rights under this Agreement, it may obtain confidential information including but not limited to code, proprietary NextRoll APIs, and/or information stored on the developer site ("Proprietary Information"). Such Proprietary Information shall, as between Company and NextRoll, belong solely to NextRoll and shall include, without limitation, the NextRoll APIs (including any and all derivative works and updates thereto), trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, product requirements, problem reports, performance information, software documents and other technical, business, product, marketing and financial information, plans and data. Company hereby acknowledges and agrees that the Proprietary Information and the materials contained thereon constitute and contain valuable information and trade secrets of NextRoll, and embody substantial creative efforts and confidential information, ideas and expressions.
(a) Company agrees (i) to protect Proprietary Information from unauthorized dissemination and use, including NextRoll competitors; (ii) to use Proprietary Information only for the performance of Company's obligations and in connection with the exercise of Company's rights hereunder; (iii) not to disclose any Proprietary Information, or any part or parts thereof, to any of its employees, agents or contractors except to those full-time employees or contractors of Company who are aware of the confidentiality obligations imposed by this Agreement and have entered into written confidentiality agreements with Company which require such employees and/or contractors to comply with confidentiality obligations no less restrictive than the requirements of this Agreement; (iv) not to disclose or otherwise provide to any third party, without the prior written consent of NextRoll, any Proprietary Information or any data or other information produced, obtained or created by Company in connection with Company's access to the NextRoll APIs; and (v) to undertake whatever action is necessary (or authorize NextRoll to do so in the name of Company) to prevent or remedy any breach of Company's confidentiality obligations herein set forth or any other unauthorized disclosure of any Proprietary Information by its current or former employees, agents or contractors. The foregoing restrictions on disclosure and use shall not apply with respect to any Proprietary Information that: (x) was or becomes publicly known through no fault of Company; (y) was known by Company before receipt as evidenced by Company's contemporaneous written records; or (z) becomes known to Company without confidential or proprietary restriction from a source other than NextRoll that does not owe a duty of confidentiality to NextRoll with respect to such Proprietary Information.
(b) Company acknowledges and agrees that, due to the unique nature of NextRoll's Proprietary Information, there can be no adequate remedy at law to compensate NextRoll for the breach of any provision of this Agreement; that any such breach shall allow Company or third parties to compete unfairly with NextRoll resulting in irreparable harm to NextRoll that would be difficult to measure; and, therefore, that upon any such breach or threat thereof, NextRoll shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages), in addition to whatever remedies it may have at law.
8. REPRESENTATIONS AND WARRANTIES
(a) Mutual. Each party hereby represents and warrants to the other party that each party has the power, authority and capacity to execute, deliver and perform its obligations under this Agreement, which constitutes a valid and legally binding agreement enforceable in accordance with its terms. In addition, the person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement on behalf of the Company.
(c) Disclaimer of Other Warranties by NextRoll. THE NEXTROLL APIs ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEXTROLL DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE NEXTROLL APIs, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, NEXTROLL DISCLAIMS ANY WARRANTY THAT USE OF THE NEXTROLL APIs BY COMPANY WILL BE UNINTERRUPTED OR ERROR FREE.
9. MODIFICATIONS TO THIS AGREEMENT. NextRoll reserve the right to modify this Agreement in its sole discretion at any time upon notice to Company. Company shall be responsible for reviewing and becoming familiar with any such modification. Company's continued use of the NextRoll APIs following any such modification constitutes Company's acceptance of the terms and conditions of this Agreement as modified. If Company does not agree to the modified terms of this Agreement, Company's sole and exclusive remedy is to terminate this Agreement immediately upon written notice to NextRoll.
10. INDEMNITY. Company agrees to defend, indemnify and hold harmless NextRoll and NextRoll's directors, offers and employees from and against any and all third party claims, losses, liabilities, awards and costs (including reasonable attorneys' fees and expenses) (each, a "Claim") arising out of related to (a) Company's use of the NextRoll APIs not in accordance with this Agreement; (b) any data or emails passed through to NextRoll in connection with Company's use of any NextRoll API; (c) Company's violation of any applicable law or any industry self-regulatory rules or guidelines (including the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, the DAA Self-Regulatory Principles for Online Behavioral Advertising, EU Directive 95/46/EC and EU Directive 2002/58/EC) that relate to a party's obligations under this Agreement.; (d) Company's breach of this Agreement; or (e) any violation, infringement or misappropriation of any law or third-party right (including intellectual property, property, privacy or publicity rights) by Company. NEXTROLL WILL HAVE NO LIABILITY IN CONNECTION WITH, AND COMPANY SHALL INDEMNIFY, DEFEND AND HOLD NEXTROLL HARMLESS WITH RESPECT TO, COMPANY'S FAILURE TO PROVIDE NOTICES REQUIRED BY APPLICABLE LAW TO ITS END USERS REGARDING ITS PRIVACY PRACTICES OR FOR NEXTROLL'S COLLECTION, USE OR DISCLOSURE OF DATA AS CONTEMPLATED IN THIS AGREEMENT.
11. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL NEXTROLL'S COLLECTIVE TOTAL LIABILITY ARISING OUT THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO NEXTROLL UNDER THIS AGREEMENT EXCEED $100. NEXTROLL WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO COMPANY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES RELATED TO THIS AGREEMENT, EVEN IF NEXTROLL IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (a) COMPANY BASES ITS CLAIM ON CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL THEORY, (b) NEXTROLL KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES, OR (c) THE LIMITED REMEDIES PROVIDED IN THIS SECTION FAIL OF THEIR ESSENTIAL PURPOSE.
12. MISCELLANEOUS. The parties are independent contractors and neither party is the agent, representative, joint venture or partner of the other party. This Agreement may not be assigned by Company without the prior written consent of NexRoll. NexRoll may freely assign this Agreement. Any assignment in violation of the foregoing shall be null and void from the beginning. This Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of California applicable to contracts wholly made and to be performed within the State of California.