DEVELOPER API TERMS OF SERVICE
PLEASE READ THESE DEVELOPER API TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE API AND SERVICE (EACH AS DEFINED BELOW) OFFERED BY PALM FINANCE, INC. (“PALM”). BY CLICKING ON THE “ACCEPT” OR “SUBMIT” BUTTON, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU,” “YOUR,” “YOURS” OR “LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, ARE BECOMING A PARTY TO THIS “AGREEMENT, AND ARE HEREBY REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE. YOUR USE OF ANY PORTION OF THE API OR SERVICE, AS WELL AS YOUR SUBMISSION OF ANY ORDER FORM (INCLUDING AN ONLINE ORDER FORM) OR SIMILAR DOCUMENT THAT REFERENCES THIS AGREEMENT AND THAT IS ACCEPTED BY PALM (EACH, AN “ORDER FORM”), SHALL IN EACH CASE ALSO CONSTITUTE ASSENT TO THIS AGREEMENT. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PALM’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY PALM SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AND YOU SHALL HAVE NO RIGHT TO USE THE API OR SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
WHEREAS, Palm owns and operates a comprehensive data and analytics platform for small businesses, including a website, app and subdomains (the “Service”) that aggregates, collects and stores profile information for small businesses;
WHEREAS, Licensee desires to acquire from Palm, and Palm desires to provide to Licensee, the right and license to access and use certain technologies as more fully described herein;
NOW THEREFORE, the parties hereto, in consideration of the foregoing and other good and valuable consideration recognized by the parties, hereby agree as follows:
1. DEFINITIONS
The following terms shall have the following meanings for the purpose of this Agreement:
1.1 “API” means Palm’s application programming interfaces and specifications thereto, as it is provided by Palm to Licensee, to enable Licensee and End Users to interface with the Service.
1.2 “Client” means the entity utilizing the API to connect to the Client Service.
1.3 “Client Service” means Client’s applications, products, and services.
1.4 “Documentation” means documentation and information regarding the API and Service that are delivered by Palm to Licensee in any form (including the documentation set forth), including any updates to such documentation provided by Palm from time to time.
1.5 “Enablement Partner” means the entity that has been approved by Client and obtained a Client-specific Palm API key on behalf of Client in order to assist Client in enabling End Users to connect to the Client Service.
1.6 “End User” means a user that accesses the API or the Service through a Client Service for such user’s own benefit.
1.7 “Licensee Content” means any information, data, text, or other materials that Licensee or End Users upload, submit, transmit, display, post, store, or otherwise make available through the Service, including through the API or the Client Service.
1.8 “Licensee” means Client and the approved Enablement Partner.
1.9 “Permitted Purpose” means using the API to make the Service available to End Users solely for Client’s internal business in connection with the Client Service.
1.10 “Palm Data” means any information, data, text or other content provided by or on behalf of Palm to Licensee about an individual End User.
1.11 “Palm Website” means the website located at https://getpalm.com/.
2. API, SERVICE AND PALM DATA LICENSE; RESTRICTIONS
2.1 License. Subject to the terms and conditions of this Agreement, Palm hereby grants Licensee a non-exclusive, non-transferable, non-sublicenseable, revocable, and limited right and license during the Term to access and use the Service, API and Palm Data, and to permit End Users to access and use the API, Service and Palm Data, in each case, solely for the Permitted Purpose and in accordance with the Documentation.
2.2 Enablement Partner. If Licensee is an Enablement Partner, then Licensee may only access the API for or on behalf of Clients who have separately entered into this Agreement with Palm, and Enablement Partner hereby acknowledges and agrees that all services it performs hereunder and all rights and licenses granted to it hereunder are in furtherance of and solely for and to the benefit of such Client. In the event (i) Enablement Partner ceases to provide services for or on behalf of such Client, or Enablement Partner’s relationship with such Client terminates or expires pursuant to a separate agreement between Enablement Partner and Client, or (ii) if Palm’s relationship with such Client terminates or expires pursuant to the agreement between Palm and Client, all rights and licenses provided to Enablement Partner hereunder shall terminate and Enablement Partner shall cease any and all use of the API, Service and Palm Data on behalf of such Client. Enablement Partner and Client each shall defend, indemnify, and hold harmless Palm, Palm’s officers, directors, employees and agents, and affiliates from and against any claims, liabilities, or expenses relating to or arising out of any actions, agreements, disputes, issues or otherwise in any way related to the relationship between Enablement Partner and Client. All references to “Licensee” in this Agreement shall apply to both Client and Enablement Partner, however all references to “Client” in this Agreement shall solely apply to Client.
2.3 Responsibilities. Licensee is solely responsible for the acts or omissions of Licensee and each End User in connection with their use of the API and Service. Licensee’s agreements with End Users must: (i) be no less protective of Palm’s rights and ownership than this Agreement; (ii) not grant greater use or access rights to the Service or API than those rights, licenses and permissions described in this Agreement; (iii) require the parties to agree that Palm and its licensors shall not have any direct or indirect liability to any End Users; (iv) include substantially and materially similar restrictions to those set forth in Section 2.4 with respect to the Service and API to the extent applicable; and (v) obtain from End Users any and all necessary rights to enable Licensee to grant the license to Palm set forth in Section 3.2 below with respect to Licensee Consent. Licensee shall use best efforts to enforce all the limitations, restrictions and protections in this Section 2.2 with respect to End Users. Licensee agrees to use commercially reasonable efforts to prevent unauthorized access to or use of the API and to promptly notify Palm of any such unauthorized access or use. Licensee accepts and assumes all responsibility for complying with all applicable laws and regulations in connection with all of Licensee’s and End Users activities involving the API, the Service, or Palm Data.
2.4 Updates and Modifications. Licensee understands and agrees that the specifications for the API and the Service shall be defined by Palm in its sole discretion, and Licensee is responsible for its development and other costs associated with Licensee’s use of the API. Palm reserves the right to modify, change, update and/or enhance the API, the Service, and/or any Palm Website (each a “Modification”) at any time in Palm’s sole and exclusive discretion. Licensee acknowledges and agrees that such Modifications may affect Licensee’s and End Users’ ability to access the Service and may require Licensee to make changes to the Client Service’s interface with the API. Palm shall not be liable for any costs incurred by Licensee arising out of or in connection with any Modification.
2.5 License Restrictions.
2.5.1 Except as expressly permitted hereunder, Licensee shall not, and shall require that End Users do not (i) use any method to access or use the Service other than as permitted through the API, (ii) provide the API or access to the Service to any third parties other than End Users, (iii) permit or enable third parties to copy or obtain the API or access to the Service in any manner not expressly authorized in this Agreement, (iv) use the API or Service, in any manner that violates applicable laws, (v) license, sell, re-sell, rent, lease, transfer, assign, reproduce, distribute, or alter the API, Service or any portion of the API or Service, or permit or enable any third parties to do so; (vi) use the Service, the API, or any documentation or other materials received from Palm in connection with this Agreement, to develop a product or service that competes with the Service; (vii) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer, or otherwise attempt to discover the source code or underlying algorithms of any part of the Service or API except to the extent the foregoing restrictions are expressly prohibited by applicable law; (viii) remove or destroy any copyright notices or other proprietary markings contained on or in the Service or API; (ix) access or use the API or Service in any manner that could disable, overburden, damage, disrupt or impair the API or Service or interfere with any other party’s access to or use of the API or Service or use any device, software or routine that causes the same; (x) attempt to gain unauthorized access to, interfere with, damage or disrupt the API or Service, accounts registered to other users, or the computer systems or networks connected to the API or Service; (xi) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the API or Service; (xii) use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the API or Service to monitor, extract, copy or collect information or data from or through the API or Service; or (xii) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into Palm’s systems.
2.6 Public Announcement. The timing and content of any advertisements, announcements, press releases or other promotional activity relating to this Agreement, and the use of one party’s name or trademarks by the other party shall be subject to the prior approval of both parties. Notwithstanding the foregoing, Palm may reference Licensee as a licensee in advertisements, press releases, or other marketing or promotional activities regarding Palm’s products or services.
3. OWNERSHIP; LICENSES; THIRD-PARTY MATERIALS
3.1 Palm Ownership. As between Palm and Licensee, Palm retains all rights, title and interest in and to all intellectual property rights embodied in or pertaining to the API, Service, Palm Data, Palm Website, and Palm Marks (as defined in Section 3.6), and all improvements, modifications, enhancements, and derivative works of any of the foregoing. There are no implied licenses under this Agreement, and any rights not expressly granted to Licensee hereunder are reserved by Palm or its licensors. Licensee shall not take any action inconsistent with Palm’s ownership of the API, Service, Palm Data, Palm Website, and Palm Marks.
3.2 Licensee Content. As between Palm and Licensee, to the extent permitted by applicable law, Licensee retains ownership of the Licensee Content, subject to the license granted to Palm in the following sentence. Licensee grants Palm a perpetual, non-exclusive, sublicensable (through multiple tiers of sublicensees) royalty-free, fully paid right and license to use, copy, host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Licensee Content, in whole or in part, in any and all media or distribution methods (now known or later developed) for the purposes of operating and providing the Service to Licensee, and any for any other lawful business purpose, including to improve the usability, functionality, and accuracy of the Palm Website.
3.3 Trademark License. Palm hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use Palm’s trademarks, service marks, and logos (collectively “Palm Marks”) during the Term on Licensee’s websites or promotional materials solely to (i) attribute Palm as the provider of the Service and (ii) otherwise advertise and promote the availability of access to the Service in the Client Service. Licensee agrees to use the Palm Marks only in a form identified by Palm in writing for use hereunder [and in accordance with Palm Marks Requirements and such quality standards as may be reasonably established by Palm and communicated to Licensee from time to time in writing. Licensee shall obtain Palm’s prior written approval of any material change in the style and manner in which any of the Palm Marks are proposed to be used. Licensee shall not use the Palm Marks in a manner that disparages Palm or its products or services, portrays Palm in a false, competitively adverse or poor light, or dilutes the Palm Marks. Except as expressly provided for in this Section 3.3, Palm reserves all right, title, and interest in and to the Palm Marks. All goodwill arising from Licensee’s use of the Palm Marks shall inure to the benefit of Palm. Licensee hereby grants Palm a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use Licensee’s trademarks, service marks, and logos (collectively “Licensee Marks”) on Palm’s websites or promotional materials solely to advertise and promote the availability of access to the Service in the Client Service and in accordance with Section 2.5. Palm shall obtain Licensee’s prior written approval of any material change in the style and manner in which any of the Licensee Marks are proposed to be used. Licensee shall not use the Licensee Marks in a manner that disparages Licensee or its products or services, portrays Licensee in a false, competitively adverse or poor light, or dilutes the Licensee Marks. Licensee reserves all right, title, and interest in and to the Licensee Marks. All goodwill arising from Palm’s use of the Licensee Marks shall inure to the benefit of Licensee.
3.4 Feedback. Licensee agrees that submission of any ideas, suggestions, documents, proposals or other feedback provided to Palm (“Feedback”) is at Licensee’s own risk and that Palm has no obligations (including obligations of confidentiality) with respect to such Feedback. Licensee represents and warrants that it has all rights necessary to submit the Feedback. Licensee hereby grants to Palm a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, transferrable, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in any manner, any and all Feedback without restriction of compensation.
3.5 Data.
3.5.1 Licensee Content. Licensee represents and warrants that (i) before any End User may engage with the API or Service, Licensee shall ensure that it provides all notices and obtains all consents required under applicable law to enable Palm to process Licensee Content in accordance with Palm’s privacy policy (currently available at https://getpalm.com/privacy); (ii) it has sufficient rights, consents, and permissions to grant the licenses to Palm set forth in Section 3.2 and to input the Licensee Content into the Service and (iii) the Licensee Content does not infringe, misappropriate, or otherwise violate any third party’s intellectual property rights, privacy rights, rights of publicity, moral rights, or other proprietary rights. Licensee shall not (i) make representations or other statements with respect to Licensee Content that are contrary to or otherwise inconsistent with Palm’s privacy policy or (ii) interfere with any independent efforts by Palm to provide End User notice or obtain End User consent.
3.5.2 Palm Data. Palm Data shall only be used for the Permitted Purpose and Licensee shall delete all Palm Data in accordance with the Documentation. Licensee shall be responsible for obtaining consent directly from End Users for any use of the End User’s information or data outside of the Permitted Purpose. To the extent that End User submits any information or data directly to Licensee, Licensee shall be solely responsible for ensuring that Licensee’s use of that data is in compliance with any applicable laws and Licensee’s own stated privacy policy.
3.6 Third Party Services. Licensee acknowledges and agrees that: (i) the Service may incorporate certain information, data, and materials from third party providers (collectively, “Third Party Services”), including without limitation through integrations or connectors to such Third Party Services that are provided by Palm; (ii) Third Party Services may only be used in conjunction with the Service; and (iii) Licensee’s use of the Third Party Services hereunder shall be subject to (and Licensee agrees it is bound by) the third party terms and conditions referenced at Third Party Terms www.irs.gov (the “Third Party Terms Site”), as they may be modified from time to time by Palm and/or its third party licensors or suppliers at any time in accordance with this Section 3.4 (collectively, the “Third Party Terms”), and which are incorporated into this Agreement by reference. In the event that Palm makes any update to the Third Party Terms, Palm shall use reasonable efforts to notify Licensee of such update (email to suffice) at least 2 weeks in advance, which notice shall describe the applicable update, as well as the effective date of such update (which shall be at least 2 weeks after the date of such notice). Provided that Palm has followed the foregoing procedure, any use by Licensee of the Service following the effective date of an update to the Third Party Terms shall constitute acceptance of such update. Palm does not make any representations or warranties with respect to Third Party Services or any third party providers. Palm cannot and does not guarantee that the Service shall incorporate (or continue to incorporate) any particular Third Party Services.
4. FEES
4.1 Fees. As consideration for the use of the API and Service by Licensee and End Users, Licensee shall pay Palm the fees set forth on the Order Form (if any) (“Fees”). Unless otherwise set forth on the Order Form, at the end of each calendar month, Palm shall deliver to Licensee an invoice for the Fees for such calendar month. Licensee shall pay Palm the amounts set forth in such invoice within the time period set forth in the Order Form or, if no time period is set forth in the Order Form, within thirty (30) days of Licensee’s receipt of such invoice. Any amounts due to Palm under this Agreement not received by the date due shall be subject to a late charge of one percent (1%) per month, or the maximum charge permitted by law, whichever is less. All payments amounts due hereunder shall be paid in U.S. dollars.
4.2 Taxes. The payments are exclusive of any applicable sales, use, gross receipts, excise, value-added, personal property, or other similar taxes, which shall be separately itemized and payable by Licensee. If Palm has the legal obligation to pay or collect any taxes that Licensee is responsible for, the appropriate amount shall be invoiced to Licensee and paid accordingly. Licensee indemnifies Palm against any penalties, interest, or other liability arising from its failure to pay applicable taxes.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall commence upon Licensee’s first use of the API and/or Service and shall continue for the term set forth on the Order Form, or if the Order Form does not specify a term, one month (the “Initial Term”), unless earlier terminated in accordance herewith. Following the Initial Term, this Agreement shall automatically renew for successive renewal terms of equivalent length to the Initial Term each (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term (as applicable).
5.2 Termination. Palm may terminate this Agreement at any time for any reason or no reason at all upon ten (10) days’ written notice. Either party may terminate this Agreement immediately upon written notice to the other party (a) if the other party breaches any warranty, representation, covenant or obligation under this Agreement and fails to cure such breach within thirty (30) days of receiving written notice of the breach from the non-breaching party; or (b) if the other party is subject to a dissolution, receivership, liquidation, insolvency, conservatorship, consolidation, reorganization, sale of substantially all of its assets, cessation of business, voluntary or involuntary bankruptcy. Palm may suspend Licensee’s or any End User’s access to the API or Service or terminate this Agreement if (i) required to do so by law, (ii) to prevent a security risk or other creditable risk of harm or liability to Palm, the Service, the API, or any third parties, or with respect to Enablement Partner specifically, in accordance with Section 2.2 above.
5.3 Effect of Termination; Survival. The provisions of Sections 1, 2.4, 3, 5.3, 6, 7.2, 8, 9 and 10 shall survive any expiration or termination of this Agreement. All other rights and obligations of the parties shall cease upon expiration or termination of this Agreement, and Licensee shall cease use of the API, Service and Palm Data as of the effective date of termination.
CONFIDENTIAL INFORMATION
6.1 Confidential Information. Each party and their respective affiliates, directors, officers, employees, authorized representatives, agents and advisors (including attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all proprietary information concerning the other party’s business procedures, present and future products, services, operations, marketing materials, fees, technology, policies or plans of the other party that is received or obtained during the negotiation or performance of the Agreement, whether such information is oral or written, and whether or not labeled as confidential by such party (collectively “Confidential Information”).
6.2 Use of Confidential Information. For as long as Confidential Information of the disclosing party is in possession of the receiving party, the receiving party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplication or disclosure of Confidential Information other than in accordance with this Agreement. Each party may disclose Confidential Information of the other party to its employees or agents who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section and directed by the receiving party to treat such information confidentially, or as required by law or by a supervising regulatory agency of a receiving party. Neither party shall disclose, share, rent, sell or transfer to any third party any Confidential Information of the other party except as expressly permitted by this Agreement. The receiving party shall use Confidential Information of the other party only as necessary to perform this Agreement.
6.3 Exceptions. Notwithstanding anything to the contrary, the obligations of the receiving party set forth in this Section 6 shall not apply to any information of the disclosing party that: (a) is or becomes a part of the public domain through no wrongful act of the receiving party; (b) was in the receiving party’s possession free of any obligation of confidentiality at the time of the disclosing party’s communication thereof to the receiving party; (c) is developed by the receiving party completely independent from the Confidential Information of the disclosing party; or (d) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the disclosing party with advance written notice if reasonably possible such that the disclosing party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
6.4 Remedies. Upon the request of the disclosing party following the termination of this Agreement, the other party shall promptly return all Confidential Information of the disclosing party in its possession, and shall promptly destroy such materials containing such information (and any copies, extracts, and summaries thereof) and shall further provide the other party with written confirmation of such return or destruction upon written request. In the event a party discovers that Confidential Information of the other party has been used in an unauthorized manner or disclosed in violation of this Section 6, the party discovering the unauthorized use or disclosure shall promptly notify the other party of such event. In addition, the non-disclosing party shall be entitled to all other remedies available at law or equity, including injunctive relief.
7. LIMITED REPRESENTATIONS AND WARRANTIES
7.1 General. Each party represents and warrants that (i) it is a duly incorporated or organized entity in its state of incorporation or organization and that it has the full power and authority to enter into and perform its obligations under this Agreement; (ii) the execution and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound; (iii) this Agreement is a legal, valid and binding obligation of the party executing this Agreement; (iv) no consent or approval of any other party is required in connection with the execution, delivery, performance, or enforceability of this Agreement; and (v) it shall comply with all applicable laws, rules, and regulations in connection with performance of such party’s obligations under this Agreement.
7.2 Warranty Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 7, THE API, SERVICE, AND PALM DATA ARE EACH PROVIDED “AS IS” AND PALM AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES FOR TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. PALM DOES NOT REPRESENT OR WARRANT THAT (I) THE PALM WEBSITE, THE API, OR THE SERVICE SHALL MEET LICENSEE’S REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE API AND SERVICE); (II) LICENSEE’S OR ITS USERS’ USE OF THE API AND SERVICE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) THE ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICE OR API SHALL BE ACCURATE OR RELIABLE. LICENSEE ACKNOWLEDGES THAT THE SERVICE MAY INCLUDE THIRD PARTY SERVICES AND THAT PALM IS NOT LIABLE, AND LICENSEE AGREES NOT TO SEEK TO HOLD PALM LIABLE, FOR ANY THIRD PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTY SERVICES RESTS ENTIRELY WITH LICENSEE. LICENSEE ACKNOWLEDGES AND AGREES THAT PALM IS NEITHER A “CONSUMER REPORTING AGENCY” NOR A “FURNISHER” OF INFORMATION TO CONSUMER REPORTING AGENCIES UNDER THE FAIR CREDIT REPORTING ACT (“FCRA”) AND THE SERVICE DOES NOT RESULT IN A “CONSUMER REPORT” UNDER THE FCRA AND CANNOT BE USED AS OR IN SUCH. LICENSEE REPRESENTS AND WARRANTS THAT IT SHALL NOT, AND SHALL NOT PERMIT OR ENABLE ANY THIRD-PARTY TO, USE THE SERVICE AS A OR AS PART OF A “CONSUMER REPORT” AS THAT TERM IS DEFINED IN THE FCRA OR OTHERWISE USE THE API OR SERVICE SUCH THAT THE API OR SERVICE WOULD BE DEEMED “CONSUMER REPORTS” UNDER THE FCRA.
8. INDEMNIFICATION
Licensee agrees to indemnify, defend and hold harmless Palm, and parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors, from and against any and all third-party losses, costs, liabilities, and claims (including reasonable attorneys’ fees) relating to or arising out of (a) Licensee’s or End User’s use or misuse of the API, Service, Palm Data or intentional misconduct; (b) Licensee’s violation of this Agreement; (c) Licensee’s or End User’s violation of any applicable law, rule or regulation; (d) the Licensee Content or Licensee’s violation of any other party’s right, including without limitation any right of privacy or intellectual property rights; and (e) the Client Service. Palm shall provide the Licensee: (a) prompt notice of any claim alleged pursuant to this section; (b) the sole right to control defense and settlement of such claim; and (c) at Licensee’s sole expense, any and all assistance, information and documentation required by Licensee in its investigation, defense, settlement or release of any such action or proceeding, including execution of any document or filing reasonably related thereto. Licensee may not enter into any settlement or compromise of any such claim without prior written consent of Palm, which shall not be unreasonably withheld, except any settlement of a claim that resolves such claim without liability to Palm, impairment to any of the Palm’s rights, or requiring Palm to make any admission of liability. Notwithstanding the foregoing, Palm reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee shall fully cooperate with Palm in asserting any available defenses.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL PALM BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO BUSINESS INTERRUPTION, IN EACH CASE WHETHER OR NOT PALM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, THE API, PALM DATA OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE OR API; (II) ANY OTHER MATTER RELATED TO THE SERVICE OR API OR PALM DATA, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, OR (III) FOR ANY AMOUNT EXCEEDING THE GREATER OF (X) THE AMOUNT OF FEES PAID TO PALM DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM OR (Y) $100 (ONE HUNDRED DOLLARS). NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL NOT LIMIT A PARTY’S LIABILITY UNDER SECTION 6 (CONFIDENTIALITY) OR SECTION 8 (INDEMNIFICATION). PALM ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY LICENSEE CONTENT.
10. MISCELLANEOUS
10.1 Assignment. Licensee may not assign this Agreement without the prior written consent of Palm. Subject to the foregoing limitation, this Agreement is binding upon and inures to the benefit of the successors and assigns of the respective parties hereto.
10.2 Independent Contractors. The relationship of the parties hereto is that of independent contractors. The parties hereto are not deemed to be agents, partners or joint ventures of the others for any purpose as a result of this Agreement or the transactions contemplated thereby. Nothing herein shall be deemed or construed as granting to either party or any right or authority to assume or to create any obligation or responsibility, express or implied, for, on behalf of, or in the name of the other party. All financial and other obligations associated with each party’s business are the sole responsibility of such party.
10.3. Third Party Beneficiaries. This Agreement is not intended and shall not be construed to create any rights or benefits upon any person not a party to this Agreement.
10.4 Force Majeure. Neither party shall be liable to the other in any way whatsoever for any failure or delay in performance of any of the obligations under this Agreement (other than obligations to make payment), arising out of any event or circumstance beyond the reasonable control of such party (including war, rebellion, civil commotion, terror, strikes, lock-outs or industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather; acts of terror; epidemics, pandemics, or quarantine restrictions; or order by any government department, council or other constituted body).
10.5 Costs and Expenses. Unless specifically provided for elsewhere in this Agreement, each party shall bear its own costs and expenses, including legal fees, accounting fees and taxes incurred in connection with the negotiation and performance of this Agreement.
10.6 Compliance with Law. Licensee shall at all times comply with all applicable international, federal, state and local laws and shall not engage in any illegal or unethical practices. Without limiting any of the foregoing, Licensee agrees that it shall not permit the use of the Service or API or Palm Data, export, or re-export the Service or API or Palm Data, (a) into, or to or for the benefit of a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders, or license or otherwise permit use of the Service or API or Palm Data for any activities involving nuclear materials or weapons, missile or rocket technologies, proliferation of chemical or biological weapons, or any other purpose prohibited by applicable law or in any jurisdiction where the Service is prohibited.
10.7 Notices. Except as otherwise provided, all notices under this Agreement shall be delivered by email, or physical mail to the other party at the address or number set forth in this Agreement. Notices to Palm sent by physical mail shall also be sent via email to hello@getpalm.com. Notices shall be deemed to have been given (i) at the time of delivery when delivered by email, (ii) at the time of delivery when delivered personally, or (iii) three (3) business days after having been sent by physical mail.
10.8 Entire Agreement; Modification. This Agreement, including any exhibits or other documents attached hereto or referenced herein, each of which is hereby incorporated into this Agreement and made an integral part hereof, constitutes the entire agreement between the parties relating to the subject matter hereof and there are no representations, warranties or commitments except as set forth herein. This Agreement supersedes all prior understandings, negotiations and discussions, written or oral, of the parties relating to the transactions contemplated by this Agreement. This Agreement may not be changed orally but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought.
10.9 Headings; Construction. The headings to the clauses, sub-clause and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or other portion of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, shall be deemed to be followed by the words “without limitation” and the word “discretion” means sole discretion.
10.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to any conflict of law principles. The Federal and State courts located in San Francisco County, California shall be the exclusive venue for any disputes under this Agreement, and the parties hereby consent to the personal jurisdiction of those courts for such purposes.
10.11 Provisions Severable. If any provision of this Agreement shall be or become wholly or partially invalid, illegal or unenforceable, such provision shall be enforced to the extent that it is legal and valid and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns.
10.12 Waivers; Cumulative Remedies. No failure or delay by a party to insist upon the strict performance of any term or condition under this Agreement or to exercise any right or remedy available under this Agreement at law or in equity, shall imply or otherwise constitute a waiver of such right or remedy, and no single or partial exercise of any right or remedy by any party shall preclude exercise of any other right or remedy. All rights and remedies provided in this Agreement are cumulative and not alternative; and are in addition to all other available remedies at law or in equity.
10.13 Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.14 Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which shall constitute one and the same instrument.