ARTICLE 1 MARKETPLACE
1.1 Service. NSP hereby authorizes Ascenum to promote and make available to Ascenum Members, (otherwise known as private business owners) access to NSPs’ designated service profile(s) (the “Profiles”) in the Marketplace (as defined below) (collectively, the “Marketplace”). This Agreement entitles Ascenum Members (as defined below) to access NSPs via the Marketplace, and to enter into discussions for the sale and purchase of NSP services (“Deliverables”). For the purposes of this Agreement, “Deliverable” means any product or service produced or delivered by, or ordered from, NSP by Members. The Deliverables shall be available to Members. as part of a separately negotiated services arrangement between a Member and an NSP.
1.2 OBLIGATIONS OF ASCENUM.
1.2.1 Upon full deployment of the Marketplace (as defined below), Ascenum will:
- 126.96.36.199 make available a page for the NSP Profile to be completed by NSP and subject to Ascenum’s approval;
- 188.8.131.52 provide first line support to NSP regarding its use of the Marketplace and any updates to the Profile;
- 184.108.40.206 provide access to the NSP Profile to Members who have the appropriate level of membership giving them access to the Marketplace (without requiring such to register or connect directly with NSP) pursuant to the License (as defined below), provided that Ascenum may reject or remove access to the Marketplace (or content associated therewith), the NSP Profile, or the NSP Portal (as defined below) in Ascenum’s absolute discretion.
1.2.2 Subject to the terms and conditions of this Agreement, Ascenum hereby grants NSP a limited, non-exclusive, non-transferable, non-sublicensable license to use the application programming interface provided hereunder by Ascenum (the “API”) solely for the purpose and to the extent reasonably necessary to properly integrate Ascenum’s proprietary platform (the “Ascenum Platform”) with the Marketplace to enable the proper and secure access to the NSP Profile.
1.3 OBLIGATIONS OF NSP.
1.3.1 NSP hereby grants Ascenum a revocable, non-exclusive license and right to (a) use and display the Profile(s) and to use, display, modify and display the NSP Materials for Ascenum’s internal business purposes; and (b) provide access to the Profile(s) (and any content associated therewith, including any NSP Materials) to Members via the Marketplace for use by such Members for their internal business purposes (collectively, the “License”).
1.3.2 NSP, at its discretion, will respond to network matches with Members and any arrangement for services with Members shall be governed by separate agreements between NSP and Members, including any delivery times or other service level obligations therein.
1.3.3 NSP will provide Ascenum with ad-hoc and/or scheduled reports on billings, order volume, and other business activities as needed or reasonably requested related to NSP’s and any Network Member’s use of the Marketplace, including accurate details of services and Deliverables provided and pricing.
1.3.4 NSP acknowledges that this Agreement does not extend to and cover Members, and that Members must submit orders for NSP’s Deliverables using an agreement and such other terms as may be agreed between NSP and each retaining NSP.
1.3.6 NSP acknowledges that the Marketplace will be the exclusive means for Members to access and link with NSP. NSP will not subsequently market directly to Ascenum’s current Members in relation to any products or services that are competitive with or substantially similar to or substitutable for any Ascenum listed services without advising Ascenum of such intentions or actions, or otherwise encourage any such person to use any platform, application, website, portal, service or method (other than the Ascenum Platform or the Marketplace) to order any service that would be a Deliverable if ordered via the Ascenum Platform or the Marketplace.
Meanwhile, Ascenum acknowledges that the ongoing and normal independent Marketing efforts by an NSP may occasionally result in less targeted overlap with the Ascenum Membership community and that such occasional overlap is normal in a large-scale Marketplace.
1.3.7 Ascenum will provide access to Members via the Marketplace of the NSP Profile(s), 24x7x365, subject to customary maintenance windows and unanticipated support activities that may make the Profile(s) unavailable for short periods of time.
1.3.8 NSP will provide to Ascenum accurate, complete and current information regarding the Deliverables (including accurate pricing details if any pricing is provided) in the NSP Profile(s), which is not misleading, and NSP will promptly update such information as any changes occur.
1.3.9 NSP hereby agrees to, and shall at all times comply with and ensure that each of its employees, agents, subcontractors, consultants and other representatives complies with, the API Terms provided or made available by Ascenum, and such terms are incorporated herein by reference.
1.3.10 NSP will not display, distribute, copy or use any Ascenum logo, trademark or other proprietary indicia (collectively, “Ascenum Marks”), or any trademarks confusingly similar to any Ascenum Marks, without Ascenum’s prior written consent. Any permitted use of Ascenum Marks shall be in accordance with any guidelines or restrictions provided or made available by Ascenum. NSP acknowledges Ascenum’s ownership of Ascenum Marks and the goodwill pertaining thereto, and NSP agrees that all goodwill associated with use of any of the Ascenum Marks by NSP will endure entirely for the benefit of Ascenum. NSP will not register any Ascenum Marks, or any trademarks confusingly similar to any Ascenum Marks, in any jurisdiction.
1.3.11 NSP may, at its sole option and at no cost, provide to Ascenum articles, marketing materials, blog content and other materials and content developed by NSP, and responses to surveys or questionnaires requested by, or in interviews with, Ascenum (“NSP Materials”). that Ascenum may, at its option and from time to time, make such NSP Materials available to Members by Ascenum through its website, community platform, learning center, special events, webinars and other means to promote the NSP Services or Deliverables offered within an NSP service category, including without attribution and/or anonymous reference. Ascenum may also create content relevant to an NSP service category and post such content through the website, including content developed from interviews, questionnaires and surveys used by Ascenum with NSP (“Ascenum Content”).
ARTICLE 2 COMPENSATION
2.1 Pricing. If disclosed in a Profile, NSP shall maintain the pricing and other key terms as set forth in the Profile for Deliverables. Such pricing is valid throughout the term of this Agreement, except that NSP may update Deliverable pricing and other terms from time to time in its sole discretion by updating its Profile. NSP shall not directly or indirectly (via any means whatsoever) offer or provide any pricing or other material terms, regarding any Deliverable, which are more favorable than the applicable pricing and other terms offered to Members via the Marketplace as set forth in the Profile or in any subsequent agreement. Ascenum shall not have any obligations to pay or reimburse NSP, except as expressly set forth in this Agreement. NSP shall be solely responsible and liable for any sales, use or other taxes related to any orders submitted to NSP using or facilitated by the Marketplace.
2.2 No Payments by Ascenum. Ascenum will not be responsible for any amounts due from any Members to NSP. It is NSP’s sole responsibility to collect any amounts due for Deliverables ordered by each Member via the Marketplace.
2.3 Marketplace Access Fee. NSP will pay Ascenum an annual, non-refundable, fixed fee, prorated for the number of days remaining in the calendar year in which the NSP joins the Marketplace, which amount Ascenum may change in its discretion with notice to NSP, for representation, access to and use of the Marketplace (the “Access Fee”). The Access Fee after the first year, or prorated year, shall thereafter be automatically renewed and immediately due and payable on the first day of each successive calendar year, unless otherwise negotiated or cancelled in agreement with Ascenum.
ARTICLE 3 TERM AND TERMINATION
3.1 Term. The initial term of this Agreement is for the period of time that begins on the Effective Date through December 31 of that calendar year. This Agreement shall automatically renew on January 1 of the following calendar year for successive one (1) year terms unless either Party provides written notice of non-renewal to the other Party at least sixty (60) days prior to the end of current term.
3.2 Termination for Breach. If either Party breaches this Agreement and does not cure such breach within ten (10) business days (or such other mutually agreed period of time) after receipt of written notice specifying the breach, the non-breaching Party may terminate this Agreement upon written notice.
3.3 Termination for Insolvency. This Agreement shall terminate immediately, without notice, (a) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings (which, if involuntary, are not dismissed within 30 days); (b) upon either Party's making an assignment for the benefit of creditors; or (c) upon either Party's liquidation, dissolution or ceasing to do business.
3.4 Termination for Convenience. Ascenum may terminate or suspend this Agreement, in part or in whole (or any rights or obligations hereunder), at any time and for any or no reason. Ascenum will use commercially reasonable efforts to promptly notify NSP of any such termination.
3.5 Effect of Termination. Upon any termination of this Agreement, (a) each Party shall promptly return the other Party’s confidential information and materials that are in such Party’s possession; and, (b) each Party shall reasonably cooperate and assist the other Party with efforts to transition away from the Integration, including with respect to Members. Articles 2 and 4 through 7 and Section 3.5 and any rights or obligations of either Party that have accrued prior to termination as set forth herein, and the provisions of this Agreement useful for interpretation thereof, shall survive any termination of this Agreement.
ARTICLE 4 WARRANTIES; DISCLAIMER; LIMITATIONS OF LIABILITY
4.1 Warranties. NSP represents, warrants, and covenants to Ascenum and Members that the Deliverables shall be provided and delivered in a professional and workmanlike manner, in accordance with this Agreement, any agreement between NSP and the Members, any published specifications, and all applicable industry standards, service levels, laws, and regulations. Each Party represents, warrants, and covenants to the other Party that (a) it has the requisite power and authority to execute, deliver, and perform its obligations hereunder; (b) it does not need the consent or approval of any third party to enter into this Agreement nor will this Agreement result in a default or violation under any agreement to which it is a party; and (c) it is not a party to any agreement with a third party, the performance of which is reasonably likely to conflict with its ability to fully perform its respective obligations hereunder.
4.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ASCENUM DISCLAIMS ALL OTHER WARRANTIES, WHETHER IMPLIED, EXPRESSED, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO THE ASCENUM NETWORK PLATFORM, THE MARKETPLACE, THE API, NSP DELIVERABLES, ANY RELATED DOCUMENTATION OR ANY INFORMATION OR DATA ORDERED, PROCESSED, PROVIDED OR MADE AVAILABLE IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR THAT ANY PRODUCT, SERVICE, SOFTWARE OR PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE.
4.3 Limitations of Liability. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OR ANY BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF PROFIT, REVENUE OR GOODWILL, ANY BUSINESS INTERRUPTION OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE IN THE AGGREGATE IN EXCESS OF THE GREATER OF (X) $10,000 OR (Y) THE TOTAL AMOUNTS PAID BY THE NSP TO ASCENUM UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS FIRST GIVING RISE TO THE CLAIM.
ARTICLE 5 INDEMNIFICATION
5.1 Indemnification by NSP. NSP shall defend, indemnify, and hold Ascenum, its officers, directors, employees, agents and contractors harmless from and against any and all third party claims (including claims by Members) and proceedings, and all associated liability, loss and expense (including reasonable attorneys' fees), to the extent arising out of (a) the Deliverables; (b) any actual or alleged infringement or violation of any third party intellectual property or other rights by the Deliverables, the Profile or the Marketplace (or by any other software or other materials provided or made available to Ascenum by or on behalf of NSP); or (c) a breach by NSP of any material provision of this Agreement.
5.2 Indemnification by Ascenum. Ascenum shall defend, indemnify, and hold NSP, its officers, directors, employees, agents and contractors harmless from and against any and all third party claims and proceedings, and all associated liability, loss and expense (including reasonable attorneys' fees), to the extent arising out of any actual or alleged infringement or violation of any third party intellectual property rights by the Ascenum Platform or the API, except to the extent arising from any modification thereto (unless Ascenum made or expressly authorized such modification), any unauthorized use thereof or any combination thereof with any other product, service, software or other item or materials.
5.3 Indemnification Procedure. In connection with any claim subject to the indemnification obligations of this Article, each Party shall reasonably cooperate and the indemnifying Party shall not settle such claim without the indemnified Party’s prior written consent if such settlement would impose any liabilities or obligations on any indemnified individual or entity.
ARTICLE 6 INTELLECTUAL PROPERTY
6.1 Ownership by NSP. As between NSP and Ascenum, NSP shall own all right, title and interest in and to the Deliverables (except to the extent other arrangements are made with a Members for transfer or licensing of such Deliverables on an exclusive basis), including any modifications or derivatives thereof and any intellectual property rights in or appurtenant to any of the foregoing.
6.2 Ownership by Ascenum. As between Ascenum and NSP, Ascenum shall own all right, title and interest in and to the Ascenum Platform, the Marketplace, the Ascenum Content and the API, including any modifications or derivatives thereof and any intellectual property rights in or appurtenant to any of the foregoing.
6.3 Ascenum Client Data. NSP agrees that Members grant Ascenum certain rights to access and use any information or data (a) obtained, accessed, hosted or otherwise collected by Ascenum from Members; and/or (b) associated with or processed via or in connection with the Marketplace (collectively, “Ascenum Client Data”). This Agreement does not in any way limit Ascenum’s rights in, to or to use, distribute or otherwise exploit (and NSP shall not in any way limit or restrict Ascenum’s access to or use or distribution of) any Ascenum Client Data. Notwithstanding anything to the contrary in this Agreement, Ascenum shall not have any confidentiality obligations under this Agreement with respect to Ascenum Client Data.
6.4 Freedom of Operation. Either Party may, at any time during or after the term of this Agreement, conduct any business or develop, sell or otherwise commercialize any products or services, even if such business, products or services are competitive with any business, products or services of the other Party, provided that such action does not violate the terms set forth in this Agreement.
6.5 Reservation of Rights. Each Party reserves all rights not expressly granted to the other Party under this Agreement.
ARTICLE 7 MISCELLANEOUS
7.1 Choice of Law. This Agreement shall be subject to, governed by, and construed in accordance with the laws of the State of Florida without regard to its rules governing conflicts of law. NSP consents and submits to the exclusive jurisdiction and venue over any action, suit, or other legal proceedings that may arise out of or in connection with this Agreement in the courts located in Miami-Dade County, Florida, provided that either Party may seek preliminary injunctive relief in any court of competent jurisdiction for any breach or threatened breach of this Agreement relating to intellectual property rights or confidentiality obligations.
7.2 Confidentiality. Neither Party shall disclose, transfer or otherwise make available to any third party (other than to such Party's legal advisors and accountants who shall be bound by obligations no less restrictive than the terms of this Section) the terms of this Agreement (including, without limitation, Access Fees), or any other information disclosed or made available hereunder that is marked confidential by the disclosing Party or would otherwise be reasonably considered confidential (collectively “Confidential Information”). Each Party shall give access to Confidential Information solely to those employees and agents and affiliates with a need to have access thereto. Each Party shall take the same security precautions to protect against disclosure or unauthorized use of the Confidential Information that it takes with its own confidential information of a similar kind, which in no event shall be less than a reasonable standard of care. Neither Party shall be in breach of this provision if Confidential Information is: (a) disclosed with the other Party's prior written approval; (b) known to the general public through no breach of this Agreement (or any other agreement) by the receiving Party; (c) developed independently by the receiving Party without use of or reference to the Confidential Information; (d) received from a third party, which has the right to make such disclosure, without confidentiality restrictions; or (e) disclosed pursuant to any judicial or governmental request, requirement or order, provided that reasonable steps are taken to give the other Party sufficient prior notice in order to contest such request, requirement or order. Notwithstanding anything to the contrary in this Agreement, Ascenum may disclose to Members any information regarding this Agreement or any reseller, vendor marketplace or distribution activities related to Ascenum, which disclosure Ascenum reasonably deems necessary or appropriate. NSP shall disclose to Members, as reasonably directed by Ascenum, information regarding this Agreement or any reseller, vendor marketplace or distribution activities related to Ascenum.
7.3 Notices. All notices to either Party shall be in writing and delivered by hand or by certified mail or overnight delivery service to the address set forth by NSP or Ascenum or to such other address as either Party shall give by notice to the other Party. Notices shall be effective when delivered in accordance with the foregoing.
7.4 Independent Contractors. The relationship of Ascenum and NSP established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (a) establish an employer employee relationship between Ascenum and NSP; (b) give either Party the power to direct and control the day-to-day activities of the other; or (c) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking. The Parties acknowledge and agree that neither Party is under any obligation to direct any individual or entity regarding, or otherwise facilitate, the purchase of or subscription to the other Party’s (or any of its affiliates’ or related persons’) products or services, and that any such activity shall be based on such Party’s independent discretion and judgment and not based on the expected receipt of any compensation or any additional or subsequent compensation or business. During the term of this Agreement, Ascenum may use NSP’s name, trademarks and other proprietary indicia as reasonably necessary or appropriate, subject to standard trademark usage guidelines provided by NSP to Ascenum, in connection with this Agreement (including in relation to the Deliverables, the Ascenum Platform and Marketplace).
7.5 Force Majeure. Each Party shall not be in breach of this Agreement to the extent resulting from any cause beyond its reasonable control and not resulting from its negligence.
7.6 No Waiver. No term or provision hereof will be considered to have been waived by either Party, and no breach consented to by either Party, unless such waiver or consent is in writing and is signed by the Party against whom the waiver or consent is asserted. No consent to or waiver of a breach by either Party will constitute a consent to, waiver of, or excuse for any other, different, or subsequent breach by such Party.
7.7 Entire Agreement. This Agreement, including the API Terms which are incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior or simultaneous representations, discussions, negotiations, letters, proposals, agreements and understandings between the Parties with respect to the subject matter hereof and thereof, whether written or oral. Nothing in this Agreement is intended to confer benefits, rights or remedies unto any person other than the Parties and their permitted successors and assigns, and no third party shall have the right to enforce the provisions of this Agreement.
7.8 Amendment. From time to time, in Ascenum’s sole discretion, Ascenum may amend the terms and conditions of this Agreement. Such changes will become effective once made by Ascenum but will not apply retroactively. If a change is material, in Ascenum’s reasonable discretion, Ascenum will notify NSP. By continuing to use or access the Marketplace, NSP agrees to be bound by the amended terms of this Agreement. No other change of any of the provisions hereof shall be effective unless and until set forth in a writing duly signed by an officer of Ascenum and by NSP.
7.9 Assignment. Neither Party may assign or subcontract this Agreement, or any rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party, and any purported assignment or transfer in violation of the foregoing is void. Notwithstanding the foregoing, Ascenum may assign its rights hereunder (a) to any of its affiliates; (b) in connection with a sale of all or substantially all of its assets or stock; or (c) in connection with a merger or other corporate reorganization. Subject to the foregoing, all of the terms, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective Parties.
7.10 Severability. If any term of provision of this Agreement, or the application thereof shall be found invalid, void or unenforceable by any government or governmental organization having jurisdiction over the subject matter, the remaining provisions, and any application thereof, shall nevertheless continue in full force and effect.
7.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against the Party whose signature appears thereon, but all of which taken together shall constitute but one and the same instrument.
1. GENERAL. These terms and conditions (these “API Terms”) govern your access to and use of any application programming interface, hyperlinking or email integration system and any related documentation (collectively, the “API”) that Ascenum Business Network, Inc. (together with our affiliates, “Ascenum”, “us”, “we” or “our”) may provide or make available to you in order to allow you to integrate your service, platform or application with our proprietary platform (the “Ascenum Platform”) in the support of our clients (each, a “Network Member”). By accepting these API Terms, either (i) by clicking a box indicating your acceptance; (ii) by your signature below; or (iii) by accessing or using the API, you agree to the terms and conditions contained herein and acknowledge that these API Terms supersede any prior or contemporaneous terms and conditions, including any terms or conditions you may provide, and any such additional or different terms or conditions shall have no force or effect. You hereby consent to receiving any notices and communications from us electronically in connection with these API Terms.
2. API LICENSE; RESPONSIBILITIES; RESTRICTIONS
2.1. API License. Subject to the terms of these API Terms, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license while these API Terms are in effect to access and use the API solely for the purpose and to the extent reasonably necessary to integrate your Profile with the Ascenum Platform to enable the proper and secure access to Profiles and submission of inquiries by Members via such integration.
2.3. Restrictions. You shall not, and shall not permit any other Person to, access or use the API except as expressly authorized in these API Terms. For purposes of clarity and without limiting the generality of the foregoing, you shall not, nor permit any other Person to: (i) copy, download, modify or distribute the API in any time-sharing, service bureau, software as a service, cloud or other technology or service; (ii) sublicense or otherwise assign, transfer or make available the API for use by any Person (other than the Network Member); (iii) reverse engineer, disassemble, modify, decompile, decode, adapt or otherwise attempt (x) to derive or gain access to the source code of the API or any related software, (y) to re-identify methodologies or processes used therein or (z) to extract any ideas, algorithms or procedures therefrom, in each case in whole or in part; (iv) bypass or breach any security device or protection used by the API or access or use the API or Ascenum Platform other than as expressly authorized in these API Terms; (v) input, upload, transmit or otherwise provide to or through the API or Ascenum Platform any information or materials that are unlawful or injurious or any virus, worm, malware or other malicious computer code designed to disrupt, disable or harm the API or Ascenum Platform; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede, harm or materially alter the functionality of the API, Ascenum Platform, related systems or our provision of services to Members or any third party, in whole or in part; (vii) access or use the API or Ascenum Platform (or any related systems, software, hardware, data, materials or services) in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law or that is obscene, defamatory, harassing, harmful or otherwise inappropriate or unauthorized; (viii) remove, delete, alter or obscure any of our trademarks, specifications, documentation, terms, warranties or disclaimers, or any intellectual property or proprietary rights notices; or (ix) access or use the API or Ascenum Platform, or related materials, for purposes of competitive analysis of the Ascenum Platform, the development, provision or use of a competing software service or product or any other purpose that is to our detriment or commercial disadvantage (for the avoidance of doubt, you will not create any application programming interface or associated tools and documentation that function substantially the same as the API or offer the same for use by third parties (including the Network Member)).
2.4. Third Party Content. The API may contain third party content (such as text, images, videos, audio, or software), which is the sole responsibility of the Person that makes it available. While we may review third party content, we assume no responsibility to determine whether it is illegal, offensive or violates these API Terms or it is subject to third party intellectual property rights and may remove or refuse to display certain content. Unless expressly permitted by the content owner or by applicable law, you will not, and will not permit and Person acting on your behalf to, (i) scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header; (ii) copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense such content to any third party; (iii) misrepresent the source or ownership of such content; or (iv) remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material of such content.
3. PROPRIETARY RIGHTS; CONFIDENTIALITY
3.1. Ownership. As between you and us, we own all right, title and interest, including all intellectual property rights, in and to the API, Ascenum Platform, Ascenum Marks and any Confidential Information provided hereunder, together with all improvements, enhancements or modifications thereto (including as a result of any suggestion, enhancement request, recommendation, correction or other feedback thereto provided by you, for which we shall have no obligation to you) (collectively, “Ascenum Materials”). Except for the express license and limited use rights granted in these API Terms, we do not grant you any right, title or interest in or to any Ascenum Materials.
3.2. Confidential Information. For purposes of these API Terms, “Confidential Information” means any information disclosed or made available by us to you, regardless of format or medium, including any financial information, technical and non-technical data, services, products, processes, operations, reports, analyses, test results, technology, specifications, protocols, performance standards, know-how, methodologies, trade secrets, trade practices, marketing plans and materials, strategies, forecasts, research, concepts, ideas, and names, addresses and any other characteristics or identifying information of our existing or potential licensors, suppliers, customers or employees or any information derived from any of the foregoing; provided that such information is either (i) clearly designated as “Confidential” in writing (if communicated in writing) or at the time of disclosure (if disclosed orally or visually) or (ii) of the nature or type, or disclosed under circumstances, which should reasonably be regarded as confidential. Our Confidential Information includes the Ascenum Materials and any data or personally identifiable information regarding or associated with Members (collectively, “Network Member Data”). Confidential Information shall not include any information, other than Network Member Data, which (i) is or becomes available to the public other than as the consequence of a breach of these API Terms; (ii) is actually known to you or in your possession without any limitation on use or disclosure prior to receipt from us; (iii) is rightfully received without confidentiality restrictions from a third party in possession of such information who is not under obligation to us not to disclose the information; or (iv) is independently developed by you without use of or reference to the Confidential Information. The burden of proving the applicability of these exceptions shall be on you.
3.3. Non-Disclosure of Confidential Information. You shall (i) hold in strict confidence and trust all Confidential Information, using the same degree of care that you use to protect the confidentiality of your own confidential information of similar type, and in any event no less than a reasonable degree of care; and (ii) not disclose, sell, rent or otherwise provide or transfer, directly or indirectly, any Confidential Information to any Person without our prior written consent, except that you may disclose Confidential Information to your or your affiliates’ employees, agents, contractors, legal counsel and accountants who need to know such information, only to the extent reasonably necessary, consistent with the obligations of the parties under these API Terms and who are bound by confidentiality obligations no less stringent than those set forth in these API Terms. You may use the Confidential Information only as expressly authorized in these API Terms and not for any other purpose. You shall require any of your employees or representatives who obtain Confidential Information to comply with these API Terms and shall be responsible for any breach of these API Terms by such employees or representatives.
3.4. Compelled Disclosure. Notwithstanding the foregoing, you shall be permitted to disclose Confidential Information pursuant to a court order, government order or any other legal requirement of disclosure, or pursuant to the listing rules of any stock exchange to which such party is subject, in each case if no suitable protective order or equivalent remedy is available; provided that, to the extent permitted, you give us written notice of such court order, government order, legal requirement or listing rule requiring disclosure immediately upon knowledge thereof and allow us a reasonable opportunity to seek to obtain a protective order or other appropriate remedy prior to such disclosure to the extent permitted by law; and further provided that you shall furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally required, and will exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
4.1. Termination. You may stop using the API at any time with or without notice; provided, however, that in order to terminate these API Terms, you must provide us with prior written notice and upon termination, cease your use of the API, without any recapture of the prorated portion of the Annual Access Fee.. We reserve the right to terminate these API Terms or discontinue the API or any portion or feature or your access thereto for any reason and at any time without liability or other obligation to you. You shall promptly notify us if at any point you cease providing any Deliverables to Members.
4.2. Effect of Termination. Upon any termination of these API Terms or the discontinuance or suspension of your access to the API, (i) all rights and licenses granted to you will terminate immediately; (ii) you will immediately stop using the API and Ascenum Marks; and (iii) you will immediately delete and destroy any Confidential Information in your possession or control and any cached or stored content that was permitted under Section 2.4 (and, upon our request, certify such destruction in writing, which certification shall include representations that (x) describe the nature and scope of the efforts undertaken to remove/expunge the information and (y) certify that the information is no longer accessible or usable by you).
4.3. Suspension. In addition to any other remedies we may have, in lieu of termination, we may elect to immediately suspend your access in the event of our belief in good faith after reasonable inquiry that you (i) breached any of Section 2, Section 3 or Section 7.2 (Monitoring), or (ii) are engaged in fraudulent, harmful or unlawful activities.
4.4. Surviving Provisions. All provisions of these API Terms that by their nature should survive termination will survive termination, including accrued rights to payment, ownership, confidentiality obligations, warranty disclaimers and limitations of liability.
5. DISCLAIMER OF WARRANTIES; LIABILITY
5.1. Disclaimer of Warranties. THE API AND ALL OTHER MATERIALS AND INFORMATION PROVIDED BY US UNDER THESE API TERMS ARE PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS WITH NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. FOR THE AVOIDANCE OF DOUBT, WE DO NOT WARRANT THAT THE API WILL FUNCTION WITHOUT INTERRUPTION OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE API.
5.2. Force Majeure. Ascenum shall not be responsible or liable for any delay or failure resulting from any events, circumstances or causes beyond Ascenum’s reasonable control.
5.3. Excluded Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE NOR ANY OTHER PERSON WHO HAS CONTRIBUTED TO THE DESIGN, DEVELOPMENT OR DEPLOYMENT OF THE API, SHALL BE LIABLE FOR ANY (I) INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES; (II) LOST BUSINESS OR ANTICIPATED SAVINGS, LOST PROFITS, LOST GOODWILL OR DIMINUTION IN VALUE; OR (III) LOST, DAMAGED, CORRUPTED OR INACCURATE DATA, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THE API, ASCENUM PLATFORM OR THESE API TERMS, EVEN IF WE HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
5.4. Maximum Liability. To the fullest extent permitted under applicable law, our total liability, if any, for any and all claims arising out of or in connection with providing you access to and use of the API shall not exceed $500 USD.
6. INDEMNIFICATION. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless us and any other Person who has contributed to the design, development or deployment of the API, and our and their respective directors, officers, employees, agents, shareholders, suppliers and consultants, against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from or related to (i) your use of the API or Ascenum Platform other than as expressly authorized in these API Terms; (ii) sales, value-added, use, excise or other taxes, duties, fees, levies or other governmental charges arising from your business transactions; (iii) a violation of any law or regulation governing, or of any intellectual property or other rights by, your goods, services, software or other materials; or (iv) your breach of these API Terms or any unlawful conduct by you or on your behalf.
7.1. Entire Agreement; Amendment. These API Terms are the complete and exclusive agreement between us and you concerning the subject matter of these API Terms and supersedes any and all prior or contemporaneous proposals, agreements, verbal or written, and may not be modified except in writing, signed by both parties. These API Terms shall take precedence over any additional or different terms and conditions you may provide, to which notice of objection is hereby given.
7.2. Monitoring. You acknowledge that (i) we may monitor use of the API to ensure quality, improve our offerings and verify your compliance with these API Terms, and agree not to interfere with this monitoring; (ii) this monitoring may include our accessing and using your Profile and your platform or website to identify security issues that could affect us or Members; (iii) we may use any technical means to overcome any interference identified by this monitoring.
7.3. Waiver; Severability. The failure to enforce at any time the provisions of these API Terms or to require at any time performance by the other party of any of the provisions of these API Terms shall in no way be construed to be a waiver of such provisions or rights. If any provision of these API Terms is held to be invalid or unenforceable by a judicial or regulatory authority, the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable. If no feasible interpretation would save the provision, it shall be severed and the remainder shall not be affected and shall be enforced as nearly as possible according to its original terms and intent.
7.4. Governing Law. These API Terms shall be construed and governed in accordance with the laws of the State of Florida, excluding its conflict of laws provisions.
7.5 Equitable Relief. You acknowledge that any breach of Section 2 or Section 3 may irreparably harm us, that the damages suffered by us as a result of such breach will be difficult to ascertain, and that we may not have an adequate remedy at law for such breach. You agree and consent that in the event of such actual or threatened breach, we shall be entitled, without posting bond, in addition to all other rights and remedies to which we may be entitled, to obtain injunctive or other equitable relief.
By agreeing to these API Terms, you intend to be legally bound as of the Effective Date.