1. ACCESS RIGHTS; RESTRICTIONS
Subject to the Client’s compliance with the terms and conditions of these Terms, Emporix hereby agrees that during the term of these Terms, the Client has the non-exclusive right to: (i) internally use the package of application programming interface materials provided by Emporix (the “API Package”) solely as necessary to make an application owned and operated by the Client (the “Client Application”) interoperate with the Emporix services described on https://www.emporix.com/ (collectively with the API Package, the “Services”), (ii) use the Services in such Client Application provided to end users (consumers or businesses) (the “End Users”) solely for internal evaluation of the Services, and (iii) use the End User information and data provided via the Services (the “Output”) solely in such Client Application for such internal evaluation use case. All use of the Services and Output must be only as provided in these Terms, only in accordance with Emporix’s applicable technical user documentation.
Except for the rights expressly granted under this Section 1, Emporix reserves and retains all right, title, and interest in and to the Services which includes but is not limited to the API Package and any related Output (except for raw End User data, which belongs to the End User), software, products, works, and other intellectual property created, used, or provided by Emporix for the purposes of these Terms. To the extent the Client provides Emporix with any feedback relating to the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Emporix will own all right, title and interest in and to such Feedback (and the Client hereby makes all assignments necessary to achieve such ownership).
1.4 Privacy and Authorizations.
1.5 Permitted Users.
Client may permit its employees, agents, contractors and service providers to access the Services and Output on Client’s behalf (“Permitted Users”), provided that Client remains responsible for their compliance with all of the terms and conditions of these Terms (including without limitation terms relating to use of Services and Output) and that any such use of the Output and Services is for the sole benefit of Client. If Client enables any third parties as Permitted Users, Client (and not Emporix) remains solely responsible for its relationships with such third parties and for any related billing matters, technical support, or disputes.
1.6 Permitted transfer of Client data.
Client permits Emporix to act on Client’s behalf in terms of providing mandatory opt-ins for any third party integrations or systems used directly or indirectly by the Services. Account Deactivation, termination of the contract or any change to the contract with Emporix will not result in obligation on Emporix to revoke the opt-ins provided on Client’s behalf.
2. DEVELOPMENT ACCOUNTS
Emporix may offer free sandbox or development accounts for the Services ("Development Accounts"). Clients may use Development Accounts solely for internal evaluation of the Services to determine whether to enter into a paid commercial relationship with Emporix, and not for production access or any other purpose. In using Development Accounts, Clients must comply with Emporix's relevant documentation, policies, and instructions, including as relates to the data types and use cases eligible for Development Accounts. Emporix may make available different types of Development Accounts, and each Development Account may have limited functionality and other usage limits. Emporix may modify or disable Development Accounts (and delete related data submitted by Client or provided by Emporix) without notice or liability to Client. Emporix has no support obligations for Development Accounts. Subject to this paragraph, Development Accounts remain subject to the terms and conditions of these Terms, including without limitation Sections 1.2 (Restrictions) through 1.5 (Permitted Users), 3 (Compliance Reviews), 7 (Warranty; Disclaimer) and 8 (Limitation of Liability).
3. COMPLIANCE REVIEWS
To access or use the Services, Client must successfully pass Emporix's compliance reviews, which may include automated verifications, online questionnaires, and requests for information ("Compliance Reviews"). As part of the Compliance Reviews, Client must provide prompt responses to Emporix's requests for information about Client, the Client Application, Client's business and associated entities, and Client's intended use of the Services. Client represents and warrants that all information it provides to Emporix as part of Compliance Reviews will be accurate and complete, and Client will immediately notify Emporix if any previously provided information is out-of-date or becomes inaccurate. Clients may be required to complete more than one Compliance Review, for instance, to enable Development Accounts or upgrade to production access, or as requested by Emporix based on changes in Client's use of the Services or increased risk factors. Client's passage or failure of any Compliance Review is in Emporix's sole discretion. If Client fails any Compliance Review or fails to provide prompt and complete responses within three business days after Emporix's requests for information (even if Client has passed a previous Compliance Review or received provisional access to the Services), Emporix may suspend, revoke, or terminate Client's access to the Services, without notice or liability to Client.
4. TERM; TERMINATION
These Terms will commence on the Effective Date and will continue in effect unless terminated in accordance with these Terms. Either party may terminate these Terms in the event the other party materially breaches the terms of these Terms and fails to cure such breach within ten (10) days from receipt of written notice thereof. In addition, Emporix may immediately suspend the Services in the event it determines or believes that (a) there is unauthorized access to the Services via Client’s account, (b) continued provision of the Services may do material harm to Emporix or its networks or systems or reputation or subject Emporix to liability, or (c) Client materially breached Section 1 of these Terms. Emporix may terminate these Terms for any reason and without cause upon written notice to Client. But for Section 1.1, all provisions of these Terms will remain in force in the event of termination.
During the term of these Terms, each party (a “Disclosing Party”) may disclose, under these Terms, the other party (a “Receiving Party”) with confidential and/or proprietary materials and information of the first party (“Confidential Information”). All materials and information disclosed by Disclosing Party to Receiving Party under these Terms and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all such other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, will be considered Confidential Information; for the avoidance of doubt, the Service, all pricing information and terms of these Terms, are Confidential Information of Emporix. Receiving Party will maintain the confidentiality of the Confidential Information and will not disclose such information to any third-party without the prior written consent of the Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated under these Terms. The obligations in this Section 5 will not apply to any information that: (i) is made generally available to the public without breach of these Terms, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third-party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party will return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, (a) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under these Terms; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as these Terms and (b) all Feedback and the API Package will be solely Emporix’s “Confidential Information.”
The Client will defend, indemnify and hold Emporix harmless from and against all third-party claims, actions, proceedings, regulatory investigations, damages, losses, judgments, settlements, costs and expenses (including attorneys’ fees), arising from or in connection with: (i) Client’s breach of any laws or regulations (including with respect to privacy); (ii) Client’s or any Permitted User's use of the Services and Output; or (iii) Client’s violation of any agreements it has with any End User.
7. WARRANTY; DISCLAIMER
THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER EMPORIX NOR ITS AFFILIATES, SUPPLIERS, LICENSORS, AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ANY WARRANTY THAT THE SERVICES ARE FREE FROM DEFECTS. EMPORIX DOES NOT MAKE ANY WARRANTY AS TO THE OUTPUT THAT MAY BE OBTAINED FROM USE OF THE SERVICES. CLIENT, IF AN INDIVIDUAL, MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
8. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER EMPORIX NOR ITS AFFILIATES, SUPPLIERS, LICENSORS, AND DISTRIBUTORS WILL BE LIABLE UNDER THESE TERMS FOR ANY: (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; (B) LOSS, ERROR, OR INTERRUPTION OF USE OR DATA (IN EACH CASE, WHETHER DIRECT OR INDIRECT); OR (C) COST OF COVER OR LOSS OF BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE. TO THE FULLEST EXTENT PERMITTED BY LAW, EMPORIX’S AGGREGATE LIABILITY IN CONNECTION WITH THESE TERMS WILL NOT EXCEED ONE HUNDRED DOLLARS (US$100.00). THE PARTIES AGREE THAT THE WAIVERS AND LIMITATIONS SPECIFIED IN THIS SECTION 8 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS ARE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. These Terms are not assignable or transferable by Client except with Emporix’s prior written consent; provided, however, that Client may, upon prior written notice to Emporix, transfer and assign its rights and obligations under these Terms to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which these Terms relate. If such a transfer or assignment is made in favor of a direct competitor of Emporix, then Emporix may terminate these Terms upon written notice to Client. Emporix may freely assign these Terms. These Terms and the documents referenced herein are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of these Terms, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of these Terms. Any notices in connection with these Terms will be in writing and sent by first class mail, confirmed facsimile or major commercial rapid delivery courier service to the address specified above (or such other address as may be properly specified by written notice hereunder). Email notice will be permitted by Emporix if sent to the Client’s account email address. All notices to Emporix will be sent to: Emporix AG, Fabrikstrasse 5, 6330 Cham, Switzerland, Attn: Emporix Legal. Any delay in or failure of performance by either party under these Terms will not be considered a breach of these Terms and will be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to, acts of God, power outages, pandemics/epidemics, governmental actions and requirements, and the acts and omissions of Emporix’s data suppliers. During the term of these Terms, (a) Client agrees to participate in case studies and other similar marketing efforts reasonably requested by Emporix; (b) Emporix may disclose that Client is a Emporix customer to third parties; and (c) Emporix may include on and in Emporix’s website, case studies, marketing materials, and conference presentations and other speaking opportunities, Client’s testimonials and other feedback regarding the Services, name, website URL, use case, and logo and other marks. Upon request from Client, Emporix will promptly stop making the disclosure and use described in the foregoing sentence except to the extent already included in any then-existing materials. These Terms will be governed by the substantive laws of Switzerland, without regard to the conflict of law provisions thereof. The application of 1980 United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. With respect to all disputes arising in relation to these Terms, the parties consent to exclusive jurisdiction and venue in the competent courts located at the registered seat of Emporix.
From time to time, Emporix may modify these Terms. Emporix will use commercially reasonable efforts to notify Client of the modifications and the effective date of such modifications through communications via Client’s account, email, or other means. Clients must accept the modifications to continue accessing or using Development Accounts. If Client objects to the modifications, its exclusive remedy is to cease any and all access and use of Development Accounts. Clients may be required to click to accept or otherwise agree to the modified Terms in order to continue accessing or using the Services, and in any event continued access or use of the Services after the modified version of these Terms goes into effect will constitute Client’s acceptance of such modified version.