RealGifts API License Agreement
This license agreement governs our business relationship with you. Please take a moment to review our API Package integration agreement.
THE FOLLOWING TERMS AND CONDITIONS GOVERN YOUR USE OF THE DATA, FILES, SCRIPTS, DATA PARAMETERS, APPLICATION PROGRAMING INTERFACES AND ASSOCIATED PARAMETERS, DOCUMENTATION, AND OTHER INFORMATION PROVIDED TO YOU BY REALGIFTS ("COMPANY") HEREUNDER ("API PACKAGE"). BY DOWNLOADING, ACCESSING, OR USING THE API PACKAGE, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, AND ARE BECOMING A PARTY TO, THIS LICENSE AGREEMENT ("AGREEMENT"). IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
1. API Package License
Subject to the terms of this Agreement, Company grants to Licensee a non-exclusive, non-sublicensable, non-assignable, non-transferable, revocable, limited license to use the API Package in accordance with the documentation supplied by Company solely for Licensee's internal use as provided below for personal or business purposes. Licensee agrees to use and otherwise act with respect to the API Package, and the information contained therein, only as specifically authorized herein. Use of the API Package will be limited to using the information contained therein to allow Licensee to make its products (that are not competitive with Company products or services) fully compatible and interoperable with Company's API Package. For the avoidance of doubt, this license does not authorize incorporation or embodiment of any part of the API Package, or any information contained therein or any other Licensee intellectual property, in or with any product or service.
Licensee will not reproduce or modify the API Package or any portion thereof. Any scripts and files provided by Company as part of the API Package or that utilize the API Package may only be modified to the extent intended and authorized by Company in writing. Licensee shall not rent, sell, lease or otherwise transfer or disclose the API Package or any part thereof or any information therein or use any of the foregoing for the benefit of a third party. To the extent the API Package consists of software, Licensee shall use such software in object code form only. Licensee shall not reverse engineer the API Package or anything contained therein. Licensee will not patent anything that relates to, or builds upon, extends, supplements, is based on or surrounds any aspect of any portion of the API Package or information therein (and will not authorize, enable or permit any third party to do so); if in case of a breach of this restriction, Company will automatically have (and is hereby granted) a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, assignable right and license to fully exercise all resulting patent rights and to allow others to do so. The API Package and services provided by Company pursuant to this Agreement will be provided to Licensee on a non-exclusive basis. However, during the term of this Agreement, Licensee will use the API Package and services provided by Company on an exclusive basis, with respect to other products and services that compete with the Company.
Company reserves the right to release modified versions of the API and to require Licensee to use the most recent version. Company may modify this Agreement at any time with or without notice. If a modification is unacceptable to Licensee, Licensee must remove the implementation and discontinue use of the API Package. Licensee's continued use of the API Package will deem acceptance of the modifications by Licensee.
4. Proprietary Rights
As between Company and Licensee, the API Package (including, without limitation, all improvements, derivatives, modifications and the like to the API Package), and all intellectual property rights in and to the foregoing, are and shall at all times remain the sole and exclusive property of Company and are protected by applicable intellectual property laws and treaties ("Company IP"). Subject to the terms and conditions set forth in this Agreement, Licensee shall and hereby does transfer and assign to Company all right, title and interest in and to any interest Licensee may have in the Company IP, and Company hereby accepts such transfer. Licensee hereby grants to Company a worldwide, non-exclusive, non-transferable, fully paid license to use the "Licensee Marks" (as defined below) for the purpose of referencing Licensee in connection with this Agreement. For purposes of this Agreement, "Licensee Marks" means: (i) any unique or distinctive trade dress of the Licensee products or web pages; or (ii) any other trademark or service mark used by Licensee.
Licensee will earn commissions based on the current commission rate offered by Company at time of sale for products sold by Licensee through the API Package. Commission rates are applied to the price of the products at time of transaction charged to users of the API Package, less refunds, chargebacks, or cancellations, if any, associated therewith. Commission rates are not applied to any taxes, processing fees, or delivery fees charged to users of the API Package. Commission rates vary by product, and Licensee may be required to log in to view current commission rates, and commission rates are subject to change at any time at the sole discretion of Company. If Company determines at its sole discretion that a commission rate was issued or advertised in error, Company will not be responsible for paying said commission rate and may use means necessary to correct such errors at any time. Company will deduct any "Promotional Discounts" from Licensee's future payments. For purposes of this Agreement, "Promotional Discounts" means the discounts received on transactions by users of the API Package as a result of the redemption of coupon codes issued by Licensee. Coupon issuance is subject to authorization by Company. Company may deduct from Licensee's future payments any amounts or fees incurred resulting from transactions through the API Package that result in returned or cancelled checks, and any amounts or fees incurred resulting from fraudulent or illegal transactions through the API Package. Company may withhold from Licensee's future payments any amounts earned on transactions through the API Package related to any investigation it is conducting, but in no case longer than 180 days after the transaction. In addition, Company may withhold from Licensee's future payments any amounts or fees incurred on transactions in dispute because a user of the API Package defaults on payment or otherwise seeks chargeback or refund during the pendency of that dispute, but in no case longer than 180 days after the transaction. Company may deduct from Licensee's future payments any amounts or fees incurred resulting from transactions through the API Package that result in refund, chargeback, or cancellation. Company will issue commission payments to Licensee for transactions through the API Package approximately 30-60 days after the end of the calendar month in which the transactions occurred. Payments will be made in U.S. dollars. Company will not issue payments if it does not have on record Licensee's current banking information or any other information needed to make payments. If a payment for any given month would be less than $1,000 USD, Company will roll payment over to the next month unless this Agreement has been terminated. No commission shall be due to Licensee for any month in which monthly sales do not exceed $10,000 USD, and any such commission balance for the month shall be forfeited to Company ("Minimum Sales Volume"). Company will only make payment to a single recipient. Licensee will not receive interest on balances held before payment; balances are not deposit obligations; and balances are not insured by the Federal Deposit Insurance Corporation or any other governmental agency. Licensee must notify Company of any payment dispute in writing within 30 days of receipt of the payment, and failure to do so constitutes a waiver by Licensee of any claim relating to the payment.
6. User Information
7. Payment Processing
If Licensee processes user payments for its API Package integration using Licensee's own customer payment data, Licensee will make daily funds transfers available to RealGifts via ACH or other method mutually agreed upon by both parties. Licensee acknowledges that Company reserves the right to delay or cancel user orders if said funds transfers do not occur on schedule, at Company's sole discretion.
Licensee agrees to report to Company any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties. Company is in no way obligated to provide Licensee with any error correction or support, but may provide whatever error correction and/or support services Company may determine in its sole discretion (and anything it provides in connection therewith will be deemed part of the API Package).
Certain non-public information relating to the Company's business and operations, including, without limitation, inventions, disclosures, processes, systems, methods, formulae, devices, patents, patent applications, trademarks, intellectual properties, instruments, materials, products, patterns, compilations, programs, techniques, sequences, designs, research or development activities and plans, specifications, computer programs, source codes, mask works, costs of production, prices or other financial data, volume of sales, promotional methods, marketing plans, lists of names or classes of customers or personnel, lists of suppliers, business plans, business opportunities, or financial statements that: (i) derives independent economic value, actual or potential, for not being generally known to the public or to other persons, (ii) is the subject of efforts to maintain its secrecy, or (iii) would otherwise be understood by a reasonable business person to be of a confidential nature constitutes Company's confidential information ("Confidential Information"). The API Package (including, without limitation, all improvement, derivatives, modifications and the like) is part of Company's Confidential Information. Licensee hereby agrees (i) to hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Licensee employs with respect to its own confidential materials), (ii) not to divulge any Confidential Information to any third person (except consultants, subject to the conditions stated below), (iii) not to use any Confidential Information except for the purposes set forth in this Agreement, and (iv) not to copy or reverse engineer any Confidential Information. Any employee or consultant given access to the Confidential Information must have a legitimate "need to know" and shall be similarly bound in writing. Licensee acknowledges and agrees that due to the unique nature of the Company's Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, that upon any such breach or any threat thereof, Company shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
10. WARRANTY DISCLAIMER
The parties acknowledge that the API Package and any services are provided "AS IS." EXCEPT FOR BODILY INJURY, COMPANY AND ITS LICENSORS DISCLAIM ALL WARRANTIES RELATING TO THE API PACKAGE OR ANY SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Remedies and Damages
COMPANY AND ITS SUPPLIERS AND LICENSORS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR THE TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS OR (C) FOR ANY AMOUNTS IN THE AGGREGATE IN EXCESS OF $1,000.00. COMPANY AND ITS LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.
12. BASIS OF BARGAIN
EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISIONS BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
This Agreement shall continue until terminated as set forth in this Section. Unless otherwise agreed upon in writing, either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement, by providing 90-days advance written notice to the other party of the termination of this Agreement. Upon termination, the license granted hereunder shall terminate and Licensee shall immediately return the API Package, together with any and all documents, notes and other materials regarding the API Package or its contents to Company, including, without limitation, all portions and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect. Additionally, upon termination or expiration of this Agreement for any reason, Licensee will cease distributing, selling and marketing the API Package and any improvements and subsequent versions thereof. Upon termination or written notice of intent to terminate this Agreement or Licensee's action that causes intentional reduction of sales or user traffic to the Licensee's API Package integration as determined by Company at its sole discretion, Licensee shall forfeit to Company any and all unpaid and future commissions or other balances due to Licensee as compensation to Company for any subsequent customer service or other business continuation services that the Company may continue to provide ("Business Continuation Services"). The following Sections shall survive termination of this Agreement: 2, 4, 5, 6 and 8 through 16.
Licensee agrees to defend, indemnify, and hold harmless Company, its affiliates and their employees, contractors, officers, directors and representatives from all liabilities, losses, claims, and expenses, including, without limitation, reasonable attorneys' fees, that arise from Licensee's (i) violation of this Agreement, or (ii) otherwise from Licensee's use of the API. Company reserves the right, at it own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee will assist and cooperate with Company in asserting any available defenses.
15. Government Use
If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the API Package are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The API Package is a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the API Package by the Government shall be governed solely by the terms of this Agreement.
16. Export Controls
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the APIs in violation of any such restrictions, laws or regulations. By downloading or using the APIs, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
This Agreement shall be governed by and construed under the laws of the State of California without giving effect to the principles of conflicts of law and without application of the UN Convention on Contracts for the International Sale of Goods. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys' fees. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing. In the event that any term of this Agreement is held by a court to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Licensee may not assign this Agreement without the prior written consent of Company. All notices required or permitted under this Agreement will be in writing and will be sent to the addresses set forth in the first page of this Agreement (or such other address as a party may designate in writing). This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto.