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READ ALL OF THE FOLLOWING TERMS AND CONDITIONS. YOU WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS BY DOING ONE OR MORE OF THE FOLLOWING (A) CLICKING “I AGREE” OR A SIMILAR AFFIRMATION OR (B) USING THE API. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY.
This Candescent API Agreement (the “Agreement”) is between Candescent (“Candescent”) with a place of business at 864 Spring St NW, Atlanta, GA 30308 and you as of the date you accept these terms (the “Effective Date”).
“API” means an Candescent application program interface, including modifications and derivatives.
“Application” means a software application you develop that makes use of any of the Contents or accesses data made available through an API.
“Developer Experience” means the Candescent website provided to you to access the API.
“Contents” means API, Test Data, and any related materials that Candescent makes available to you via the Developer Experience or otherwise, including documentation and source code.
“Purpose” means to access an API and to develop an Application strictly for non-commercial, whether directly or indirectly, but does not include distribution of Applications to any third parties. The Purpose also includes accessing Test Data to test and demonstrate Applications in a non-public environment, including demonstration at the Developer Experience.
“Application Key” means a proprietary data string Candescent provides you for inclusion in an API call in order, among other things, to authenticate your credentials and enable Candescent to track your access and use of the Test Data.
“Test Data” means data and other information Candescent makes available to you through use of an API.
Candescent will provide you with user login credentials that will provide you with unique access to the Developer Experience (your “User Account”). Candescent may deny, restrict, suspend, or terminate your User Account at any time, with or without notice, at its sole discretion. Candescent may send communications relating to the Developer Experience or the Contents to you at the e-mail or mailing addresses associated with your User Account.
Candescent is not obligated to provide any support, maintenance, or other professional services, or otherwise assist you, with your use of the Developer Experience or the Contents. Candescent will have no liability for any issues you experience in using the Developer Experience or the Contents.
Candescent will treat and use the personal information you provide in creating your User Account in accordance with the Candescent Privacy Policy, and by your use of the Developer Experience you consent to that use.
You are responsible for your conduct, inaction, or negligence with respect to your User Account. If you become aware of any suspicious or unauthorized conduct, immediately contact Candescent at Candescent.webmaster@candescent.com.
You agree to not use the Developer Experience, the Contents, or the Application Keys in violation of any applicable local, state, national, or international laws, rules, or regulations, or interfere with or disrupt the Developer Experience, the Contents, or the Application Keys, including any servers or networks supporting it. You further agree to not use the Developer Experience or the Contents for any activity that Candescent deems to be illegal, threatening, libelous, obscene or harassing.
Your use of APIs may be tracked and controlled through Application Keys. Candescent may deny, restrict, suspend, or terminate your Application Keys at any time. You are liable for unauthorized use or disclosure of your Application Keys.
Subject to the terms of this Agreement, Candescent hereby grants you a personal, non-exclusive, non-assignable, non-sublicensable, revocable, limited license to use the Developer Experience and the Contents, solely for the Purpose.
Except as provided in Section 3.1, you may not: (a) use, copy, modify, distribute, display, or perform the Developer Experience, the Contents, or the Application Keys; (b) disclose, rent, loan, or transfer them to any other party; or (c) combine them with any other materials. You may not use the Developer Experience, the Contents, or the Application Keys, for any commercial purpose, nor may you decompile, reverse assemble, derive a source code equivalent of, or otherwise reverse engineer them.
Candescent reserves all rights not expressly granted. Except as provided in Section 3.1, no license or right of any kind is granted to you or any third party, including by implication, estoppel or otherwise. Candescent does not grant you any right to use any trademark or trade name of Candescent (including the name “Candescent”).
You hereby grant to Candescent a non-exclusive, transferable, sublicensable (including to other users of the Developer Experience), royalty-free, fully-paid up, perpetual, irrevocable, worldwide license under any and all intellectual property (including any patents, copyrights, trade secrets, or trademarks) you own or have the right to license to (a) use any information or materials (including software) posted on the Service by or for you (“User Content”), and (b) make, use, sell, distribute, and otherwise exploit any products, systems, or solutions, and practice any methods or processes, described in, performed by, or related to User Content.
Candescent will own any improvements, modifications, enhancements, extensions, or derivatives you may make to, or that are based on, the Developer Experience or the Contents, and all associated intellectual property rights (“Improvements”). You will own any Applications which you create, except to the extent they incorporate, use, or are based on the Developer Experience, the Contents, or any Improvements.
You may choose, or Candescent may invite you, to provide comments, suggestions, corrections, modifications, or improvements related to the Developer Experience or the Contents (“Feedback”). Candescent will presume you provide Feedback voluntarily and Candescent is free to, and shall have the right to, use it without restriction, including without providing attribution or compensation to you or any third party.
Candescent respects copyright and other intellectual property rights. Material that infringes the intellectual property rights of any person will not be permitted. If you become aware of any such material, please provide notice consistent with the requirements of the Digital Millennium Copyright Act (17 U.S.C. 512(c)(3)) to Candescent at candescent.webmaster@candescent.com so that Candescent may take appropriate action. If you knowingly misrepresent that any material is infringing, you may be liable for damages, including costs and attorneys’ fees that Candescent or an alleged infringer incurs in relying on or responding to the misrepresentation.
Your rights under this Agreement will continue so long as you remain an active user of the Developer Experience, unless they are earlier terminated pursuant to this Agreement. Candescent may terminate this Agreement in whole or in part, including any licenses or rights it provides, at any time at its sole discretion.
Upon termination, all rights and licenses granted by Candescent to you will cease, and you will stop using the Developer Experience, the Contents, and the Application Keys, and return to Candescent all copies of any of the above that you have accessed or otherwise been provided.
Your obligations in Sections 2, 3, 5, 6 and 7 will survive indefinitely after termination of this Agreement.
“Confidential Information” means all information and materials that Candescent discloses to you which is reasonably related to the Developer Experience, Contents, or the Application Keys and which is either clearly identified as confidential when disclosed, or is of a nature such that you know or should know it to be confidential.
Confidential Information does not include information that: (a) was possessed or known by you without any confidentiality obligations prior to this Agreement; (b) becomes publicly available or known through no act or omission of you; (c) is furnished to you by a third party where such third party was not subject to disclosure restrictions; or (d) is independently developed by or for you without breach of this Agreement.
Notwithstanding termination of the Agreement, you will: (a) not use Confidential Information other than for the Purpose; (b) exercise the same degree of care in protecting Confidential Information as you use to protect your own confidential information of a similar nature, but in no event less than reasonable care; (c) not disclose Confidential Information to any person or entity, except to those of your Affiliates (defined below), and your and their employees and contractors, who have a legitimate need to know it for the Purpose, and who are obligated to protect any disclosed Confidential Information under terms no less protective than those contained in this Section; and (d) promptly notify Candescent upon discovery of any unauthorized use or disclosure of Confidential Information and cooperate with Candescent to mitigate any adverse consequences. You will be liable for any failure of your Affiliates, and your and their employees and contractors, to comply with the obligations in this Section as if the failure was your own act or omission.
Your disclosure of Confidential Information pursuant to subpoena or other legal compulsion will not constitute a breach of this Agreement if, to the extent permitted under the circumstances, you have first given Candescent notice and opportunity to protect such Confidential Information by protective order or other means, you reasonably cooperate with Candescent’s requests toward that end, and you disclose only that portion which you are legally required to disclose.
An “Affiliate” is any entity which a party owns and/or controls, is owned and/or controlled by, or is under common ownership and/or control with. An entity is an Affiliate only for so long as such ownership and/or control exists. However, a change in ownership and/or control will not affect a person’s or entity’s obligations with respect to Confidential Information disclosed while it was an Affiliate.
Candescent disclaims all responsibility and liability for use of the Developer Experience, Contents and Application Keys. THE DEVELOPER EXPERIENCE, CONTENTS AND APPLICATION KEYS ARE PROVIDED “AS IS.” CANDESCENT HAS NO RESPONSIBILITY FOR THEM INCLUDING WHETHER THEY, OR THEIR USE, WILL BE FREE FROM ERRORS OR DEFECTS OR MEET YOUR NEEDS. CANDESCENT DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO THE DEVELOPER EXPERIENCE, CONTENTS AND APPLICATION KEYS, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY, PARTICULARLY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.
You will indemnify and hold harmless Candescent and its officers, directors, shareholders, employees, contractors, agents, and subsidiaries from and against any actual or threatened claims, suits, actions, proceedings, damages, liabilities, litigation and other costs, attorney’s fees, and expenses arising from or related to your use of the Developer Experience, Application Keys or the Contents, or your violation of this Agreement.
CANDESCENT WILL NOT BE LIABLE TO YOU, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, STATUTE, LAW, EQUITY, OR OTHERWISE, ARISING UNDER OR RELATED TO THIS AGREEMENT, FOR: (A) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES; (B) LOSS OF PROFITS OR REVENUE; OR (C) LOSS OF REPUTATION, GOODWILL, TIME, OPPORTUNITY, DATA, OR ACCESS TO DATA, IN ALL INSTANCES WITHOUT REGARD TO WHETHER YOU WERE MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. AS USED IN THIS SECTION, “CANDESCENT” INCLUDES ITS AFFILIATES, EMPLOYEES, AGENTS, CONTRACTORS, AND SUPPLIERS WHEN ACTING IN THAT CAPACITY, AND ANY PERSONS OR ENTITIES CLAIMING BY OR THROUGH THAT PARTY. CANDESCENT’S MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT WILL BE $100 USD.
EACH CLAUSE AND PHRASE OF THIS SECTION IS SEPARATE FROM EACH OTHER CLAUSE AND PHRASE, AND FROM THE REMEDY LIMITATIONS AND EXCLUSIONS ELSEWHERE IN THIS AGREEMENT, AND WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF A REMEDY, ANY TERMINATION OF THIS AGREEMENT, OR SEVERABILITY OF ANY CLAUSE OR PHRASE IN THIS AGREEMENT.
New York law governs Agreement, and the relationships created by it and the transactions occurring under it, except for its laws regarding conflicts of law and arbitrability; the Federal Arbitration Act will govern all issues of arbitrability. Neither party may bring a claim more than two years after the underlying cause of action first accrues.
Each party agrees to give the other prompt written notice of any claim, controversy, or dispute arising under or related to this Agreement, and both parties will engage in good faith discussions to resolve the matter. If that fails to resolve the matter promptly, either party may request the other to participate in mediation before a mutually-agreed mediator. Any matter which is not resolved through the procedures set forth above within 60 days (or such longer period as the parties may agree) will be resolved by arbitration before a sole arbitrator who is an attorney, under the then-current Commercial Arbitration Rules of the American Arbitration Association. The duty and right to arbitrate will extend to any employee, officer, director, shareholder, agent, or Affiliate, of a party to the extent that right or duty arises through a party or is related to this Agreement, the Developer Experience, or the Contents. The decision and award of the arbitrator will be final and binding, and may be entered in any court having jurisdiction. The arbitrator is directed to hear and decide potentially dispositive motions in advance of a hearing on the merits by applying the applicable law to undisputed facts and documents. The arbitration will be held in Atlanta, Georgia. This Section, and the obligation to mediate and arbitrate, will not apply to claims for misuse or infringement of a party’s intellectual property or Confidential Information. At any time, a party may seek from a court of competent jurisdiction an injunction or other equitable relief in aid of arbitration, to the extent available under applicable law. The arbitrator will not have authority to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement.
The parties are independent contractors to one another. Employees or contractors of one will not be deemed to be or act as employees or representatives of the other. Except as expressly stated otherwise, no third party will be a beneficiary of this Agreement.
If any provision of this Agreement is held to be illegal, invalid, or unenforceable in whole or in part, it will be enforced to the maximum extent permissible to effect the intent of the parties, and the remaining provisions will remain in full force and effect.
Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
All notices required to be given under this Agreement will be given in writing delivered by any means which provides written evidence of receipt (and with respect to notices delivered by Candescent, email or other electronic means) and addressed as provided for in this Agreement.
This Agreement represents the entire understanding and agreement between you and Candescent with regard to the subject matter and supersedes all prior understandings and agreements, whether oral or written.
You may not assign any of your rights or obligations under this Agreement without the prior written consent of Candescent. Candescent may assign its rights or obligations under this Agreement, in whole in part, to any third party.
