If you are entering into this Agreement on behalf of an organization, you represent you have the authority to bind your organization to this Agreement. If you do not have that authority, or if you do not agree with the terms of this Agreement, you may not access or use the APIs.
Licenses and Restrictions
1.1 API License. Subject to the provisions of this Agreement, Attentive grants you a limited, revocable, non-exclusive license to use the APIs (or other methods pre-approved in writing by Attentive) solely in connection with developing, implementing and distributing your application that interoperates or integrates with the Attentive platform in order to manage user subscriptions and send more targeted and personalized text messages.
1.2 Feedback License to Attentive. If You provide feedback to Attentive, you grant to Attentive all legal right, title and interest in the feedback. Further, to the extent Attentive requires the execution of one or more legal documents necessary to perfect these legal rights, you agree to execute all such documents for Attentive.
1.4 Proprietary Rights. The Attentive Service and Platform, the API, and all software, documentation, information, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites and any additional intellectual or other property used by or on behalf of Attentive or otherwise related to the Service, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and related thereto will be and remain the sole and exclusive property of Attentive.
Warranty, Disclaimer, Indemnity, and Limitation of Liability
2.1 Reverse Engineer. You represent and warrant that you have not and will not attempt to modify or reverse engineer the APIs. Further, you represent and warrant that you have not and will not distribute a set of APIs or a development kit that is based upon or otherwise a modification of, the APIs, including being a subset or superset of the APIs.
2.2 Disclaimer of Warranties. You acknowledge that the APIs are provided “AS IS,” without warranty of any kind, and may not be functional on any machine or in any environment. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ATTENTIVE DISCLAIMS ALL WARRANTIES RELATING TO THE APIS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Attentive makes no representations or warranties regarding the suitability of the APIs for your intended requirements or purposes. Further, Attentive makes no representations or warranties regarding the integrity of data that You TRANSMIT, transfer, store, obtain or receive through use of the APIs. Attentive is not obligated to maintain or support the APIs, or to provide you with updates, fixes, or services related thereto. You assume all risk arising from use of the APIs, including, without limitation, the risk of damage to your computer system, software applications, the corruption or loss of data, and compliance with all applicable laws and regulations (including laws and regulations related to privacy and data protection).
2.3 Indemnity. You shall defend, indemnify and hold harmless Attentive, its affiliates and their respective officers, directors, employees, agents and representatives from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from the Software Application or your use of the APIs. The Parties agree to comply with the following process when Attentive seeks indemnification under this section and specifically that Attentive is to:- (i) promptly give you written notice of the claim; (ii) give you sole control of the defense and settlement of the claim (provided that you may not settle any claim unless it unconditionally releases Attentive of all liability); and (iii) provide you, at your cost, all reasonable assistance.
2.4 Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ATTENTIVE BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR: (I) LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; OR (II) ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES OR PROFITS; (III) ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (IV) ANY AMOUNT IN THE AGGREGATE OVER $100.
Confidentiality. As used herein, Confidential Information means: any Attentive business or technical information that is disclosed to you in connection with this Agreement, including, but not limited to, any information relating to Attentive’s plans, business opportunities, or research and development. Confidential Information excludes any information that- (a) is or becomes generally known to the public other than as a result of your breach of this Agreement; (b) is rightfully known to you at the time of disclosure without restrictions on use or disclosure; (c) is independently developed by you, without access to or use of any Confidential Information; or (d) is rightfully obtained by you from a third party who has the right to disclose it and who discloses it without restrictions on use or disclosure. You will maintain all Confidential Information in strict confidence and will not disclose Confidential Information to any third party, other than a contractor who needs to know for the purposes of this Agreement and who agrees in writing to treat the Confidential Information on terms no less protective than this Agreement. You will be liable for any such contractor’s failure to treat the Confidential Information in accordance with this Agreement. You will not use Confidential Information, except as necessary for the performance of this Agreement.
Term and Termination
4.1 Term. This Agreement will commence on the date you access or use the APIs, and will continue until terminated as provided in Section(s) 4.2 or Section 4.3.
4.2 Termination for Convenience. Attentive may terminate this Agreement for any reason with ten (10) days’ advance notice to you. Attentive may, in its sole discretion, reinstate your ability to use the APIs. You may terminate the Agreement at any time by ceasing to use the APIs and disabling Your Software Application’s ability to use the APIs.
4.3 Termination for Breach. Attentive may terminate this Agreement immediately upon written notice if you breach this Agreement. Attentive may, at its sole discretion, reinstate your ability to Use the APIs if you demonstrate that you have remedied any such breach.
4.4 Emergency Suspension. If Attentive becomes aware of a situation where your use of the APIs may unduly disrupt its delivery of Attentive’s products or services to third parties (e.g., clients of Attentive) generally, or if Attentive detects unauthorized third party access to or use of the APIs (collectively referenced herein as an “Emergency”), Attentive may immediately suspend the offending use (and any rights licensed under this Agreement that enable such use). Any such suspension shall be to the minimum extent and duration needed to respond to the Emergency. At its sole discretion, Attentive may reinstate the use (and any rights granted in this Agreement that enable such a use) where the Emergency has been resolved.
4.5 Survival Upon Termination. Upon termination of this Agreement, Your license to the APIs under Sections 2 shall immediately terminate. Notwithstanding the foregoing, Sections 3 (Warranty, Disclaimer, Indemnity, and Limitation of Liability), 4 (Confidentiality), and 6 (Miscellaneous) will survive any termination of this Agreement.
5.1 Injunctive Relief. You agree that any violation or threatened violation of this Agreement may cause irreparable injury to Attentive, entitling Attentive to seek injunctive relief in addition to all legal remedies.
5.2 No Support. Unless otherwise agreed to in writing, Attentive shall not be responsible for providing any support, maintenance, or other services (or level of service) to you or a user of the Software Application for the APIs.
5.3 Export Regulations. You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State. Specifically, Licensee covenants that it will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from Attentive under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
5.4 Entire Agreement. This Agreement, including any related Order Form(s), embodies the entire agreement between the Parties with respect to the subject matter set forth herein and supersedes any previous, or contemporaneous communications, whether oral or written, express or implied.
5.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, then the remaining provisions of this Agreement will remain in full force and effect.
5.6 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that, the affected Party:- (i) provides the other Party with prompt notice of the nature and expected duration of the event; (ii) uses commercially reasonable efforts to address and mitigate the cause and effect of such event; (iii) provides periodic notice of relevant developments; and (iv) provides prompt notice of the end of such event.
5.7 Attentive’s Right of Modification. At Attentive’s discretion, Attentive may modify the terms of this Agreement upon ten (10) days’ notice to You. If you continue using the APIs after the date such modifications become effective, you will be deemed to have accepted the modifications. If you do not wish to accept such modifications, you may terminate this Agreement in accordance with Section 5.2.
5.8 Assignment. You may assign this Agreement in its entirety, whether by operation of law or otherwise, with the prior written consent of Attentive (not to be unreasonably withheld). Any attempt to assign your rights or obligations under this Agreement in breach of this section will be void and of no effect. Attentive may assign this Agreement in its entirety whether by operation of law or otherwise without your prior written consent.
5.9 Implied License and Estoppel. Nothing in this Agreement shall be construed as granting a license via the doctrines of Implied License or Legal Estoppel to rights beyond what is expressly granted under this Agreement. Further, nothing in this Agreement shall be deemed a waiver of Attentive’s intellectual property rights. These intellectual property rights are reserved to Attentive. Through agreeing to the terms of this Agreement, You acknowledge that You are only licensed to the rights expressly enumerated in this Agreement and that the actions of the parties and/or the consideration granted under this Agreement is solely for these rights and for no others.
5.10 Governing Law; Notices. This Agreement will be governed by and construed under the laws of the State of New York without reference to its conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York, and the Parties agree to waive all rights to challenge the foregoing. Any notice required or permitted to be given under this Agreement will be effective if it is (i) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed; or (ii) sent via facsimile or electronic mail to: 221 River Street, Suite 9047, Hoboken, NJ 07030, firstname.lastname@example.org in the case of Attentive and to the address provided in the Order Form, in the case of Licensee. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two (2) business days following the date of mailing, one (1) business day following delivery to a courier, and/or on the same day a facsimile or electronic mail is sent to the recipient.