API Terms and Conditions
Effective Date: March 15, 2021
These API terms and conditions (“Terms” or “Agreement”) govern your (“you” or “your”) access to and use of certain programmatic web application programing interfaces and associated tools and documentation (collectively, “APIs”) that Shoflo, LLC, a Florida limited liability company (together with our affiliates, “Shoflo”, “us”, “we” or “our”) will make available to you in order to allow you to integrate your application, product, or services (collectively, your “Application”) with certain of our systems (“Systems”) and online services (“Services”) in the support of your end users and your end users’ guests and invitees (collectively, “End Users”). By accepting this Agreement, either (i) by clicking a box indicating your acceptance; (ii) by your signature on an order form specifying the APIs to be provided hereunder, including any addenda and supplements thereto or (each, an “Order”); (iii) by accessing or using the APIs, you agree to the terms and conditions contained herein and acknowledge that the Agreement supersedes any prior or contemporaneous terms and conditions, including any terms or conditions you may provide, and any such additional or different terms or conditions shall have no force or effect. In order to access the APIs, you may be required to provide certain information (such as identification or contact details) as part of the registration process for the APIs, or as part of your continued use of the APIs. You will ensure that any registration information you give to us will always be accurate, complete and up to date and you will inform us promptly of any updates.
2. API LICENSE; RESPONSIBILITIES; RESTRICTIONS
2.1 API License. Subject to the terms of this Agreement, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license while these Terms are in effect to access and use the APIs solely: (i) to build interface software to enable your Application to interact with our Systems and Services as they currently exist or may exist in the future and retrieve information necessary to facilitate your use of the Systems or the Services through your Application, in each case only in the support of your End Users, and (ii) to display our Brand Features solely in accordance with the Brand Guidelines and only for the purpose of promoting or advertising that your Application’s integration with our Services. All goodwill arising from the use of the Brand Features shall inure solely to the benefit of Shoflo. “Brand Features” means our trade names, trademarks, service marks, logos, domain names, and other distinctive brand features. “Brand Guidelines” means our quality assurance policies and other usage guidelines and instructions for the Brand Features, as such policies, guidelines or instructions may be updated from time to time in our sole discretion.
2.3 End User Agreement. You are solely responsible for each End User. You shall be responsible for entering into an agreement between you and each End User setting forth the terms and conditions of its use of your Application (each, an “End User Agreement”). You shall ensure that the End User Agreement does not violate any terms or conditions set forth in this Agreement. You will not: (i) make any false or misleading representations with regard to us or our affiliates or distributors, or the APIs; or (ii) make any representations, warranties or guarantees to End Users with respect to the specifications, features or capabilities of the APIs that are inconsistent with the information provided by us or our affiliates or distributors.
2.5 Your Data. Additionally, you grant to us and our subcontractors a non-exclusive, worldwide, perpetual, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display all data and information submitted by or for you or your End Users on, using or through the APIs (collectively, “Customer Data”) as required to provide or perform under this Agreement, account management and support services, and technical services, in order to provide and promote Shoflo’s products or services (including the APIs) and to publish, display, use, and distribute de-identified information derived from Customer Data and from the use of the APIs for any lawful purposes, including, without limitation, improving our products and services, developing new products and services, and developing, displaying, and distributing benchmarks, analysis and similar reports, provided that Shoflo does so in accordance with all applicable laws. You warrant to us that you have the right to grant the foregoing license and provide Customer Data to us in accordance with this Agreement.
2.6 Restrictions. You shall not, and shall not permit any other Person to, access or use the APIs except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, you shall not, nor permit any other Person to, except as this Agreement expressly permits: (i) copy, download, modify or distribute the APIs in any time-sharing, service bureau, software as a service, cloud or other technology or service; (ii) sublicense or otherwise assign, transfer or make available the APIs for use by any Person; (iii) reverse engineer, disassemble, modify, decompile, decode, adapt or otherwise attempt (x) to derive or gain access to the source code of the Services or any related software (including on the Systems), (y) to re-identify methodologies or processes used therein or (z) to extract any ideas, algorithms or procedures therefrom, in each case in whole or in part; (iv) bypass or breach any security device or protection used by the APIs, Services or Systems, or access or use the APIs, Systems or Services other than as authorized by this Agreement; (v) input, upload, transmit or otherwise provide to or through the APIs, Systems or Services any information or materials that are unlawful or injurious or any virus, worm, malware or other malicious computer code designed to disrupt, disable or harm the APIs, Systems or Services; (vi) damage, destroy, disrupt, disable, impair, inhibit, limit restrict, interfere with or otherwise impede or harm in any manner the use, performance, or function of the APIs, Systems or Services, related systems or our provision of any services to the End Users, our other customers, or any third party, in whole or in part, including use in a manner that, in our sole judgement, places an unusually great burden on the network itself; (vii) use or permit use of the APIs, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (w) menace or harass any Person or cause damage or injury to any Person or property, (x) involve the publication of any material that is false, defamatory, harassing or obscene, (y) violate privacy rights, or (z) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (viii) remove, delete, alter or obscure any of our trademarks, specifications, documentation, end user license agreement, warranties or disclaimers, or any Brand Feature or other intellectual property or proprietary rights notices; (ix) access or use the APIs, Systems or Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law; or (x) access or use the APIs, Systems or Services, or related materials, for purposes of competitive analysis of the Systems or Services, the development, provision or use of a competing software service or product or any other purpose that is to our detriment or commercial disadvantage (for the avoidance of doubt, you will not create programmatic web application programing interfaces or associated tools and documentation that function substantially the same as the APIs or offer the same for use by third parties (including the End Users)). In the event you use the APIs, Systems, or Services in breach of this section, we may take any and all actions, from the issuance of a warning to limiting, suspending, or terminating your right to use the APIs, Systems, or Services to cancellation of your Order issued hereunder and involvement of government authorities we deem necessary or appropriate.
3. PROPRIETARY RIGHTS; CONFIDENTIALITY
3.1 Ownership. We own all right, title and interest, including all intellectual property rights, in and to the APIs, the Systems, the Services, our Brand Features and any of our Confidential Information provided hereunder, together with all improvements, enhancements or modifications thereto (including as a result of any suggestion, enhancement request, recommendation, correction or other feedback thereto provided by you, for which we shall have no obligation to you) (collectively, “Shoflo Materials”). You own all right, title and interest, including all intellectual property rights, in and to the Applications and your Confidential Information provided hereunder, together with all improvements, enhancements or modifications to either of the foregoing (including as a result of any suggestion, enhancement request, recommendation, correction or other feedback thereto provided by us, for which you shall have no obligation to us). Except for the express license and limited use rights granted in this Agreement, we do not grant you any right, title or interest in or to the Shoflo Materials. All rights not expressly granted by us are reserved.
3.2 Confidential Information. For purposes of this Agreement, the term “Confidential Information” means any information disclosed by one party hereunder to the other party, regardless of format or medium, including any financial information, technical and non-technical data, services, products, processes, operations, reports, analyses, test results, technology, samples, specifications, protocols, performance standards, formulations, compounds, know-how, methodologies, trade secrets, trade practices, marketing plans and materials, strategies, forecasts, research, concepts, ideas, and names, addresses and any other characteristics or identifying information of our existing or potential licensors, suppliers, customers or employees or any information derived from any of the foregoing; provided that such information is either (i) clearly designated as “Confidential” in writing (if communicated in writing) or at the time of disclosure (if disclosed orally or visually) or (ii) of the nature and type that it should reasonably be regarded as confidential. Our Confidential Information includes the Shoflo Materials. Confidential Information shall not include any information which (i) is or becomes available to the public other than as the consequence of a breach of this Agreement; (ii) is actually known to the receiving party or in its possession without any limitation on use or disclosure prior to receipt from the disclosing party; (iii) is rightfully received from a third party in possession of such information who is not under obligation to us not to disclose the information; or (iv) is independently developed by the receiving party without use of or reference to the Confidential Information. The burden of proving the applicability of these exceptions shall be on the receiving party.
3.3 Non-Disclosure of Confidential Information. You and we shall (i) hold in strict confidence and trust all Confidential Information, using the same degree of care that you and we use to protect the confidentiality of each of our respective confidential information of similar type, and in any event no less than a reasonable degree of care; and (ii) not disclose, sell, rent or otherwise provide or transfer, directly or indirectly, any Confidential Information to any Person without the disclosing party’s prior written consent, except that either party may disclose Confidential Information to its or its affiliates’ employees, agents, contractors, legal counsel and accountants who need to know such information, only to the extent reasonably necessary, consistent with the obligations of the parties under this Agreement and who are bound by confidentiality obligations and use restrictions no less stringent than those set forth in this Agreement. Each party shall use the Confidential Information only in connection with the intent of this Agreement and not for any other purpose whatsoever. Each party shall require any of its representatives who obtain Confidential Information to comply with this Agreement and shall be responsible for any breach of this Agreement by such representatives.
3.4 Compelled Disclosure. Notwithstanding the foregoing, you and we shall be permitted to disclose Confidential Information pursuant to a court order, government order or any other legal requirement of disclosure, or pursuant to the listing rules of any stock exchange to which such party is subject, in each case if no suitable protective order or equivalent remedy is available; provided that, to the extent permitted, each party gives the other party written notice of such court order, government order, legal requirement or listing rule requiring disclosure immediately upon knowledge thereof and allow the disclosing party a reasonable opportunity to seek to obtain a protective order or other appropriate remedy prior to such disclosure to the extent permitted by law; and further provided that the receiving party shall furnish only that portion of the Confidential Information which it is advised by a written opinion of counsel is legally required, and will exercise its best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.
3.5 Feedback. You may submit comments or ideas about the APIs, Services or Systems (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
4.1 Termination. Either party may terminate this Agreement immediately upon written notice to the other party if the other party materially breaches this Agreement and (a) the breach is incapable of remedy or (b) the breaching party fails to cure such breach within thirty (30) days of the date of written notice of such breach from the terminating party.
4.2 Effect of Termination. Upon any termination of this Agreement or the discontinuance or suspension of your access to the APIs, (i) all rights and licenses granted to you will terminate immediately; (ii) you will immediately stop using the API and cease use of our Brand Features; and (iii) you will immediately delete and destroy any of our Confidential Information in your possession or control and any cached or stored content that was permitted under Section 2.4 (Third Party Content) (and, upon our request, certify such destruction in writing, which certification shall include representations that (x) describe the nature and scope of the efforts undertaken to remove/expunge the information and (y) certify that the information is no longer accessible or usable by you).
4.3 Suspension. In addition to any other remedies we may have, in lieu of termination, upon ten (10) days’ prior written notice we may elect to immediately suspend your access in the event of our belief in good faith after reasonable inquiry that you (i) breached of any of Section 2 (API License; Responsibilities; Restrictions), Section 3 (Proprietary Rights; Confidentiality), or Section 8.4 (Monitoring) or (ii) are engaged in fraudulent, harmful or unlawful activities.
4.4 Surviving Provisions. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, ownership, confidentiality obligations, warranty disclaimers, and limitations of liability.
5. DISCLAIMER OF WARRANTIES; LIABILITY
5.1 Disclaimer of Warranties. THE APIS AND ALL OTHER MATERIALS AND INFORMATION PROVIDED BY US UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. WE DO NOT CONTROL OR VET USER-GENERATED CONTENT FOR ACCURACY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. FOR THE AVOIDANCE OF DOUBT, WE DO NOT WARRANT THAT THE APIs WILL FUNCTION WITHOUT INTERRUPTION OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APIs.
5.2 Limitation of Liability. WE DISCLAIM ALL LIABILITY FOR DAMAGES CAUSED BY ANY INTERRUPTION OR ERRORS IN FUNCTIONING OR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE APIS DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS AND THE SATURATION OF THE INTERNET NETWORK.
5.3 No Consequential Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NONE OF YOU, US OR ANY OTHER PERSON WHO HAS CONTRIBUTED TO THE DESIGN, DEVELOPMENT OR DEPLOYMENT OF THE APIs, SHALL BE LIABLE FOR ANY (I) INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES; (II) LOST BUSINESS OR ANTICIPATED SAVINGS, LOST PROFITS, LOST GOODWILL OR DIMINUTION IN VALUE; OR (III) LOST, DAMAGED, CORRUPTED OR INACCURATE DATA, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY; PROVIDED, HOWEVER, NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL IN ANY WAY LIMIT (A) YOUR OBLIGATION TO INDEMNIFY US AS PROVIDED IN SECTION 6; (B) YOUR OBLIGATIONS WITH RESPECT TO ANY BREACH OF SECTIONS 2.1 OR 2.6; OR (C) EITHER PARTY’S OBLIGATIONS WITH RESPECT TO (i) ANY BREACH OF SECTION 3 OR (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (COLLECTIVELY, “EXCEPTIONAL CIRCUMSTANCES”).
5.4 Maximum Liability. To the fullest extent permitted under applicable law, and regardless of the form of action, whether in contract or in tort, including negligence and strict liability, other than with respect to Exceptional Circumstances, each party’s total liability, if any, for any and all claims arising out of or in connection with providing you access to and use of the APIs shall not exceed the greater of the fees paid in the past three (3) months of the event giving rise to the claim or US$100.
To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless us and any other Person who has contributed to the design, development or deployment of the APIs, and our and their respective directors, officers, employees, agents, shareholders, suppliers and consultants, against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any third-party allegation or third-party legal proceeding to the extent arising from or related to (i) your use of the APIs other than as expressly permitted hereunder; (ii) any claim for sales, value-added, use, excise or other taxes, duties, fees, levies or other governmental charges arising from your business transactions; (iii) any claim arising out of a violation of any law or regulation governing, or of any intellectual property rights by, your goods and/or services; (iv) any End User Agreement; or (v) your breach of this Agreement or any unlawful conduct by you or on your behalf.
7.1 Fees. You will pay the fees for the APIs (the “API Fees”) in the amounts set forth in and in accordance with the applicable Order.
7.2 Minimum Usage Commitment. You agree that the API Fees will include a minimum monthly payment obligation as set forth in the applicable Order and may be characterized by a fixed fee number or the number of hours being purchased (the “Minimum Usage Commitment”). The Minimum Usage Commitment is required to be paid by you regardless of the amount of hours of actual usage. You agree the API Fees will include the amount per hour of your use of the APIs to stream your Application in excess of the Minimum Usage Commitment as set forth in and in accordance with the applicable Order.
7.3 Usage Records. You agree our system records related to the usage of the APIs and/or associated Services and Systems will be the final measurement with respect to any disputes regarding the usage volume and related fees.
7.4 Payment Terms. Unless otherwise set forth in the applicable Order, applicable fees will be due and payable on the first of each month; provided, however, if you exceed your Monthly Usage Commitment by greater than 100%, we may invoice you immediately with payment due upon invoicing. API Fees are non-cancelable and non-refundable. All API Fees paid and expenses reimbursed under this Agreement will be in United States currency.
7.5 Overdue Payments. If any charges are not received from you by the due date (except charges then under reasonable and good faith dispute), then at our discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. If any payment owed by you under this or any other agreement for APIs is 15 days or more overdue, we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our performance (including use of the APIs) until such amounts are paid in full.
7.6 Taxes. Unless otherwise stated, API Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchases hereunder.
7.7 Changes. We reserves the right to adjust the API Fees for the APIs on an annual basis. Any changes to the API Fees will be effective 30 days after written notice of such change is given by us to you.
7.8 No Offset. API Fees and expenses due from you under this Agreement may not be withheld or offset by you against other amounts for any reason.
8.1 Relationship. We and you agree that our legal relationship under this Agreement is as independent contractors. Nothing in this Agreement shall be deemed to create a joint venture, agency, partnership, or other relationship between us and you, and neither we nor you shall have any power by virtue of this Agreement to enter into any contract or commitment on behalf of the other or to bind the other in any respect whatsoever.
8.2 Entire Agreement; Amendment. This Agreement is the complete and exclusive agreement between us and you concerning the subject matter of this Agreement and supersedes any and all prior or contemporaneous proposals, agreements, verbal or written, and may not be modified except in writing, signed by both parties. This Agreement shall take precedence over any additional or different terms and conditions you may provide, to which notice of objection is hereby given.
8.3 Authority. You acknowledge that you have read and understand the terms and conditions set forth in this Agreement, and that the representative accepting or executing these Terms is a duly authorized representative, and that we and you intend to be legally bound by this Agreement.
8.4 Monitoring. You acknowledge that (i) we may monitor use of the APIs and associated Services to ensure quality, improve our offerings and verify your compliance with the Terms, and agree not to interfere with this monitoring; (ii) this monitoring may include our accessing and using your Application to identify security issues that could affect us; (iii) we may use any technical means to overcome any interference identified by this monitoring. If we are required by any third-party rights holder to remove any Content, or receive information that Content provided to us may violate applicable law or third-party rights, we may remove such content or information and/or notify you that it must discontinue all use of such content or information, and to the extent not prohibited by law, you will do so and promptly remove such content or information from your systems.
8.5 Waiver; Severability. The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the other party of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or our or your right thereafter to enforce provisions in accordance with the terms of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable by a judicial or regulatory authority, the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable. If no feasible interpretation would save the provision, it shall be severed and the remainder shall not be affected and shall be enforced as nearly as possible according to its original terms and intent.
8.6 Governing Law; Arbitration. This Agreement shall be construed and governed in accordance with the laws of the United States and the State of Florida U.S.A., without giving effect to: (i) the principles of conflicts of law and that body of law applicable to the choice of law; and/or (ii) the United Nations Convention on Contracts for the International Sale of Goods, and/or its implementing and/or successor legislation and/or its regulations. Any dispute arising under this Agreement shall be submitted exclusively to binding arbitration in Orlando, Florida U.S.A. in accordance with the rules of the American Arbitration Association, and each party consents to such exclusive forum; provided that nothing herein shall prevent either party from seeking a preliminary injunction or other equitable relief in a judicial proceeding to prevent irreparable harm pending arbitration. Any such judicial proceeding shall be brought exclusively in the United States District Court for the Middle District of Florida U.S.A., or the Ninth Judicial Circuit Court for Orange County, Florida U.S.A. Each party hereby irrevocably consents and submits to the personal jurisdiction of the specified forums, and venue therein.
8.7Notice. All notices required under this Agreement shall be given and made in writing and shall be deemed received (i) when received, if hand delivered or (ii) the day after it is sent, if delivered by an internationally-recognized common carrier's overnight delivery service providing proof of delivery. Any notices sent to us should be sent to 1 South Orange Avenue, Suite 300 Orlando, FL, 32801 Attention: Legal Department with a confirmatory email (which shall not constitute notice) to email@example.com. Any notices sent to you should be sent to the address supplied when accessing the APIs or the address noted below, as applicable.
8.8Construction. For purposes of this Agreement: (i) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; and (iii) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole.
8.9 Equitable Relief. You acknowledge that any breach of Section 2 (API License; Responsibilities; Restrictions) or Section 3 (Proprietary Rights; Confidentiality) may irreparably harm us, that the damages suffered by us as a result of such breach will be difficult to ascertain, and that we may not have an adequate remedy at law for such breach. You agree and consent that in the event of such breach, we shall be entitled, without posting bond, in addition to all other rights and remedies to which we may be entitled, to have a decree of specific performance or an injunction issued requiring any such violation to be cured and enjoining all persons involved from continuing the violation. The existence of any claim or cause of action that you or any other Person may have against us shall not constitute a defense or bar the enforcement of this Section 8.9. You acknowledge and agree that the restrictions in this Section 8.9 are reasonable and necessary to protect our legitimate business interests.