Effective Date: April 23, 2019.
By clicking and providing the information below, you are acknowledging and agreeing that you have read these terms and conditions in their entirety and accept on behalf of yourself of the entity you represent that they are written in English. Vous avez pris connaissance de tous ces termes et conditions et acceptez en votre nom ou au nom de l’entité que vous représentez qu’ils soient rédigés en anglais.
For purposes of this Agreement, capitalized terms shall have the meanings set forth below:
- API: means an application programming interface and any accompanying or related documentation, source code, executable applications and other materials made available by Newforma, including, without limitation, through its developer website.
- Application(s): means web or other software services or applications developed by Developer that utilize or interact with the API and are authorized to be published pursuant to this Agreement.
- Newforma Parties has the meaning set forth in Section 10.1.
- Confidential Information: means all information of Newforma (i)(a) that is disclosed by Newforma to the Developer or (b) that is otherwise learned by or comes into the possession or knowledge of the Developer; in connection with, or as a result of this Agreement; and (ii)(a) that has been identified as being proprietary or confidential; or (b) that, by the nature of the circumstances surrounding the disclosure or receipt, or by the nature of the information itself, would be treated as proprietary and confidential by a reasonable person. Without limiting the generality of the foregoing, Confidential Information includes all technical information disclosed by Newforma concerning Newforma Konekt®, the API and other data stored or transmitted using Newforma Konekt®, including all specifications, documentation, software code and any related information or materials.
- Developer’s Marks: mean Developer’s name, Application name(s) and associated logos.
- General API Policies: means any and all restrictions and policies implemented by Newforma from time to time with respect to the API, as set forth in this Agreement or as otherwise communicated, or made available, to Developer.
- Intellectual Property Right(s): means patents, inventions, copyrights, trademarks, designs, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
- Mark(s): mean Newforma® and Newforma’s other product and service names, trademarks, service marks, branding and logos made available for use in connection with the APIs pursuant to this Agreement.
- Publish/Published/Publishing: means the making of any Application available to any Subscriber other than Developer or for any purpose other than for use by Developer as a Subscriber.
- Representative(s): mean the employees, affiliates, agents, advisors, consultants and other representatives of the Developer.
- Subscriber(s): means and refers to individuals and entities that have agreed to the standard subscription agreement of Newforma in order to use Newforma Konekt®.
PURPOSE AND LICENSE
- Subject to this Agreement, including the restrictions set forth in Section 3, Newforma grants to Developer a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term (as defined in Section 12) to: (a) use and make calls to the API to develop and Publish Applications solely for use by Subscribers in connection with Newforma Konekt®; (b) use, reproduce, distribute, and transmit data to the extent necessary to format and display it through the Applications; and (c) use and display the Marks only to identify that the data originates from Newforma Konekt®. Developer may not transfer, assign, sell, lease, sub-license or otherwise provide, directly or indirectly, this right and license, or any portion thereof, to any third party except as expressly permitted by this Agreement. Developer will be solely responsible for all costs and expenses incurred by it with respect to its use of this right and license.
- Developer shall provide Newforma copies of all Applications it Publishes and grants to Newforma a non-exclusive, perpetual, worldwide, fully paid-up, royalty-free license to use, perform, and display such Applications solely for Newforma’s internal use and to test and approve such Applications pursuant to Section 3.10.
- Developer further grants to Newforma a non-exclusive, worldwide, fully paid-up, royalty-free license, during the Term, to use Developer’s Marks solely to enable Newforma to advertise that Developer is developing, or has developed, Applications. Any use of Developer’s Marks shall be in accordance with Developer’s reasonable trademark usage policies if such policies are promptly communicated to Newforma.
- Newforma shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into Newforma Konekt® and/or the API any suggestions, enhancement requests, recommendations or other feedback Newforma receives from Developer.
RESTRICTIONS AND RESPONSIBILITIES
- The licenses granted in Section 2 of this Agreement are explicitly conditioned on Developer’s adherence to the following restrictions and compliance with its responsibilities as set forth herein.
- Developer must comply with all restrictions set forth in this Agreement and the General API Policies in all uses of the API and any data related to the API. Developer must also comply with all restrictions set forth in this Agreement and the trademark usage policies made available to Developer in all uses of Marks. If Newforma believes, in its sole discretion, that Developer has violated or attempted to violate any term, condition or the spirit of this Agreement, the license granted to Developer pursuant to this Agreement may be temporarily or permanently revoked.
- In order to use and access the API, Developer must obtain API credentials (a Token) by becoming a Subscriber. Developer may not share its Token with any third party, shall keep such Token and all login information secure, and shall use the Token as Developer’s sole means of accessing the API. Developer is solely responsible for ensuring that the Token and all login information are provided to and used by only those users that Developer has expressly authorized (the Authorized User(s)). Developer will be solely responsible for all acts or omissions of any person using Newforma Konekt® through its Token. All transmissions generated by use of Developer’s Token will be deemed to be authorized by Developer and made by an Authorized User, except to the extent that the Token is obtained by unauthorized persons due to Newforma’s gross negligence or willful misconduct.
- Developer’s Applications shall not substantially replicate products or services offered by Newforma, including, without limitation, functions or clients on platforms where Newforma offers its own client or function. Subject to the preceding sentence and the parties’ other rights and obligations under this Agreement, each party agrees that the other party may develop and Publish applications that are similar to or otherwise compete with such party’s applications. Applications may not use or access the API or Newforma Konekt® in order to monitor the availability, performance, or functionality of any of the API or Newforma Konekt® or for any similar benchmarking purposes.
- Applications shall not, in any manner, display any form of advertising whether or not it is related to any data received by any Subscriber.
- Developer shall not, under any circumstances, through Applications or otherwise, repackage or resell the services offered through Newforma Konekt®, or any part thereof, the API or the data. Developer is not permitted to use the API or any data in any manner that does or could potentially undermine the security of Newforma Konekt®, the API or any other data or information stored or transmitted using Newforma Konekt®. In addition, Developer shall not, and shall not attempt to: (a) interfere with, modify or disable any features, functionality or security controls of Newforma Konekt® or the API, (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for Newforma Konekt® or the API, or (c) reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from Newforma Konekt® or the API.
- Developer acknowledges that Developer is solely responsible, and that Newforma has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of Applications. Without limiting the foregoing, Developer will be solely responsible for (a) the technical installation and operation of its Applications; (b) creating and displaying information and content on, through or within its Applications; (c) ensuring that its Applications do not violate or infringe the Intellectual Property Rights of any third party; (d) ensuring that Applications are not, and do not display anything that is, offensive, profane, obscene, libelous or otherwise illegal; (e) ensuring that its Applications do not contain or introduce a malicious software into Newforma Konekt®, the API or other data stored or transmitted using Newforma Konekt®, or otherwise into a Subscriber’s systems; and (f) ensuring that its Applications are not designed to or utilized for the purpose of spamming Newforma, any Subscribers or third parties.
- Developer will respect and comply with the technical and policy-implemented limitations of the API and the restrictions of this Agreement in designing and implementing Applications. Without limiting the foregoing, Developer shall not violate any explicit rate limitations on calling or otherwise utilizing an API.
- Developer shall not make any modifications to any data, other than as reasonably necessary to modify the formatting of such data in order to display it for Subscribers.
REPRESENTATIONS, WARRANTIES AND COVENANTS
- Developer represents, warrants and covenants that (a) its Applications and Developer Marks, the use of such Applications by its users, and the activities with respect to such Applications and Developer Marks undertaken by Newforma in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party; (b) Developer will comply with all applicable local, provincial, state, federal, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and Publish its Applications; (c) its Applications do not and will not contain or introduce any malicious software into Newforma Konekt®, the API, other data stored or transmitted using Newforma Konekt®, or otherwise into a Subscriber’s systems; (d) its Applications are not designed to or utilized for the purpose of spamming Newforma, any Subscribers or third parties; and (e) it has all right, power and authority to grant the licenses granted to Newforma herein.
- Developer represents, warrants and covenants that it will include the mandatory terms of service provisions listed in Section 4.4 below (the Mandatory Service Terms) in the terms of service (the App Terms of Service) that govern use of its Applications by Subscribers. Such Mandatory Service Terms are a minimum set of provisions and Developer may have more exhaustive App Terms of Service. Developer may change the term references to match the terms used in its App Terms of Service.
- Mandatory Service Terms:
- The Developer is the licensor of the Application and Newforma is not a party to the App Terms of Service.
- Except as otherwise limited by any App Terms of Service imposed or required by the Developer, Developer grants Subscriber a perpetual, worldwide, non-exclusive, non-transferable and non-sublicensable license to access, deploy, use and integrate the Application in connection with Subscriber’s use of Newforma Konekt®.
- Subscriber may not modify, reverse engineer, decompile or disassemble the Application in whole or in part, or create any derivative works from or sublicense any rights in the Application, unless otherwise expressly authorized in writing by Developer.
- The rights granted to Subscriber to use the Application under these App Terms of Service do not convey any additional rights in the Application or in any Intellectual Property Rights associated therewith.
MODIFICATIONS AND WITHDRAWAL OF ACCESS
Newforma reserves, and Developer acknowledges that Newforma has, the right to modify or withdraw the access to Newforma Konekt® or the API, at any time, for any reason, including, but not limited to, due to applicable law, regulation, exchange rules, technical reasons, or maintenance purposes.
Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Newforma any of Developer’s Intellectual Property Rights in its Applications or Developer’s Marks , and nothing in this Agreement transfers or assigns to Developer any of Newforma’s Intellectual Property Rights in Newforma Konekt®, the API, the Marks, or Newforma’s other technology or the respective Intellectual Property Rights in any data of Newforma or its Subscribers. Developer agrees that if it becomes aware of any violation of Newforma’s proprietary rights in Newforma Konekt® or the API, it will promptly notify Newforma in writing.
This Agreement does not entitle Developer to any support with respect to Newforma Konekt® or the API, unless Developer makes separate arrangements with Newforma for such support. Developer is solely responsible for providing all support and technical assistance to end-users of its Applications and Subscribers who access, deploy and/or purchase its Applications. Developer acknowledges and agrees that Newforma has no obligation to provide support or technical assistance to the users of Applications and Developer shall not represent to any such users that Newforma is available to provide such support.
- Developer will not use Confidential Information for any purpose other than (i) evaluating, implementing or exercising contractual rights associated with this Agreement; or (ii) as otherwise approved in writing by Newforma. Developer will not disclose any Confidential Information except as permitted by this Agreement and will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Developer would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care. Without limiting the generality of the foregoing, under no circumstances shall Developer use or permit the use of any Confidential Information for any purpose outside the scope of this Agreement.
- If to comply with Section 8.1 Developer is required to disclose Confidential Information to its Representatives, it will restrict such access to those who have a need to know for the purposes of this Agreement and only if the Representative is under an obligation of confidentiality no less stringent than those contained in this Agreement. Before each such disclosure, the Developer will advise such Representatives of the sensitive and confidential nature of the Confidential Information. The Developer will be liable for any failure by its Representatives to comply with the terms of this Agreement.
- The provisions of this Section 8 will not apply to any information that: (i) Developer can establish, by documentary evidence, was already known by Developer at the time of initial disclosure by Newforma; (ii) is or becomes publicly known through no wrongful act of Developer or its Representatives, or any other person subject to a confidentiality agreement in favour of Newforma; (iii) is rightfully received from a third party without similar restriction provided that the third party did not come into possession of the Confidential Information as a result, directly or indirectly, of a breach of an obligation of confidentiality owed by any person to Newforma; (iv) Developer can establish, by documentary evidence, was independently developed by or on behalf of Developer without reference to Newforma’s Confidential Information; or (v) is approved for release by written authorization of Newforma.
- Unless otherwise prohibited by law, if Developer becomes legally obligated to disclose Confidential Information, Developer will give Newforma prompt written notice sufficient to allow Newforma to seek a protective order or other appropriate remedy, and in the event Developer is unable to do so, Developer will advise Newforma immediately subsequent to such disclosure. Developer will disclose only such information as is required, in the opinion of its counsel, and will use commercially reasonable efforts to obtain confidential treatment for any Confidential Information that is so disclosed.
- All Confidential Information will remain as between the parties the exclusive property of Newforma, and Developer will have no rights, by license or otherwise, to use the Confidential Information except as expressly provided herein.
- If there is any unauthorized access to, disclosure or loss of, or inability to account for, any Confidential Information of Newforma, Developer will: (i) promptly, but in any event within five (5) days after becoming aware of it, notify Newforma at email@example.com; (ii) take such actions as may be necessary or as may be requested by Newforma, acting reasonably, to prevent any further disclosure or loss and to minimize the consequences of such disclosure or loss; and (iii) cooperate in all reasonable respects with Newforma to minimize the impact of the disclosure or loss and any damage resulting therefrom.
- Developer hereby covenants and agrees that it will indemnify and save each of Newforma and its affiliates, and their respective directors, officers and employees harmless, from and against any and all liability, loss, damages, claims, costs and expenses (including without limitation legal fees) that they may at any time incur, suffer or be required to pay arising out of or in any way related to a breach of this Section 8 by Developer, its affiliates or its Representatives.
- Developer acknowledges that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to Newforma for which monetary damages may be difficult to ascertain or be an inadequate remedy. Developer therefore agrees that Newforma will have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement.
DISCLAIMER OF WARRANTIES
Newforma MAKES NO WARRANTY REGARDING, AND HEREBY DISCLAIMS ALL WARRANTIES REGARDING, THE USE, AVAILABILITY OR SECURITY OF NEWFORMA KONEKT® AND THE API, INCLUDING ALL SERVER AND NETWORK COMPONENTS, OR ANY RIGHT OR SERVICE PROVIDED UNDER THIS AGREEMENT, OR IN RESPECT OF THE API. THE RECEIPT BY AND USE OF NEWFORMA KONEKT® AND THE API BY DEVELOPER IS AT ITS OWN RISK. EXCEPT AS SET FORTH HEREIN, NEWFORMA KONEKT® AND THE API ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND NO WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS ARE MADE BY Newforma, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR THAT ACCESS TO NEWFORMA KONEKT® AND THE API WILL BE ERROR FREE OR UNINTERRUPTED OR ARISING BY OPERATION OF LAW, STATUTE, CUSTOM OR USAGE OF TRADE. Newforma DISCLAIMS ANY WARRANTIES WITH RESPECT TO CORRECTNESS, QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS OR CONTINUED AVAILABILITY OF NEWFORMA KONEKT®, THE API AND ANY SERVICE OR ANY PART THEREOF.
LIMITATION OF LIABILITY
- EXCEPT WITH RESPECT TO DAMAGES ARISING OUT OF Newforma’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEWFORMA AND ITS AFFILIATES AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS (“Newforma PARTIES”) SHALL NOT, TO THE FULL EXTENT PERMISSIBLE UNDER THE APPLICABLE LAW, HAVE ANY LIABILITY TO DEVELOPER OR ANY THIRD PARTIES FOR: (A) THE USE OF, OR INABILITY TO USE, NEWFORMA KONEKT® OR THE API FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, DUE TO ANY SERVICE DELAYS OR INTERRUPTIONS HOWSOEVER CAUSED; (B) FAULTS OR ERRORS IN NEWFORMA KONEKT® OR THE API; AND (C) SECURITY FAILURES, INCLUDING THE EXISTENCE OF ANY VIRUS OR MALICIOUS COMPUTER CODE. NEWFORMA SHALL HAVE NO RESPONSIBILITY TO INFORM DEVELOPER OF ANY TECHNICAL OR OTHER DIFFICULTIES EXPERIENCED BY NEWFORMA OR OTHER THIRD PARTIES WITH RESPECT TO NEWFORMA KONEKT®, THE API, NEWFORMA SYSTEMS OR OTHERWISE, AND NEWFORMA SHALL HAVE NO OBLIGATION TO TAKE ANY ACTION IN CONNECTION THEREWITH. DEVELOPER’S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY OBLIGATION OF NEWFORMA HEREUNDER RELATED TO THE USE OR ACCESS OF NEWFORMA KONEKT® OR THE API, OR THE PROVISION OF ANY RELATED SERVICES, SHALL BE DEVELOPER’S RlGHT OF TERMINATION UNDER SECTION 12.
- EXCEPT WITH RESPECT TO DAMAGES ARISING OUT OF NEWFORMA’S BREACH OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE FULL EXTENT PERMISSIBLE UNDER THE APPLICABLE LAW, IN NO EVENT WILL THE NEWFORMA PARTIES’ BE LIABLE TO DEVELOPER OR ANY THIRD PARTIES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS, LOSS OF GOODWILL OR ANY OTHER ECONOMIC CONSEQUENTIAL LOSS) ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING THE PROVISION OF OR FAILURE TO PROVIDE ACCESS TO NEWFORMA KONEKT® OR THE API, REGARDLESS OF WHETHER SUCH DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED AND EVEN IF Newforma HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEWFORMA’S AGGREGATE LIABILITY TO DEVELOPER OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.
Developer agrees, at its cost and expense, to indemnify and hold harmless the Newforma Parties, and defend any action brought against any of the Newforma Parties, with respect to any claim, demand, cause of action, debt, cost, loss, damage, expense (including attorneys’ fees) or liability, arising from a third party claim (i) based upon, or related to, or alleging damages caused by, the use of, or the inability to use, Developer’s Applications, or (ii) alleging that the development or use of the Developer’s Applications infringes the Intellectual Property Rights of a third party..
TERM AND TERMINATION
This Agreement will remain in effect until terminated pursuant to this Section 12 (the Term). Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Developer violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted to Developer hereunder. Upon termination of this Agreement for any reason, Developer shall cease using, and either return to Newforma, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Developer’s possession, and shall certify to Newforma that such actions have occurred. In addition to Sections that by their very nature survive termination, Sections 2.3, 2.5, 8, and 11 shall survive termination of this Agreement.
Developer may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Developer’s rights under this Agreement or delegate performance of Developer’s duties under this Agreement without Newforma’s prior consent. Newforma may, without Developer’s consent, assign this Agreement to any affiliate or third party. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
Either party’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
RELATIONSHIP OF THE PARTIES
Nothing in this Agreement shall be construed to constitute Developer as a partner, associate, mandatory or employee of Newforma nor shall either party have any authority to bind the other in any respect, it being intended that each party shall remain an independent contractor responsible for its own actions. Without limiting the foregoing, unless otherwise specifically agreed, Developer has no authority to make contracts on behalf of Newforma, or to sell or license Newforma Konekt®.
This Agreement shall be governed by the laws of the Province of Québec, Canada, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Québec City in the Province of Québec, Canada. Developer hereby expressly agrees to submit to this exclusive jurisdiction for the purpose of resolving any dispute relating to this Agreement.