This API and Data License Agreement ("Agreement") applies to your access to, and use of, the content, documentation, code, data and related materials made available by Fysical ("Fysical") to you (collectively, the "Content"), including through the use of the Fysical application programming interface (the "API", together with any Content, "Fysical Materials"). By using any Fysical Materials you agree to this Agreement.
This Agreement commences on the date that you accept it by checking a box or clicking on a button (or something similar) when you are asked to confirm that you accept this Agreement. Acceptance in any of the foregoing manners (or other similar means) indicates that you agree to the terms and conditions of this Agreement. If you are accepting on behalf of a company, organization, or other entity, then (1) "you" includes you and that entity, and (2) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity's behalf.
3. PROPRIETARY RIGHTS - As between Fysical and Licensee, the Fysical Materials", including any and all Content made available, collected and/or derived through the API (including, without limitation, user data received from the API or submitted to the API), and all intellectual property rights in and to all of the foregoing, are and shall at all times remain the sole and exclusive property of Fysical and are protected by applicable intellectual property laws and treaties.
4. OTHER RESTRICTIONS - Except as expressly and unambiguously authorized under this Agreement, Licensee may not (i) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the Fysical Materials; (ii) otherwise use the Fysical Materials on behalf of any third party; or (iii) design or permit the Licensee Service to disable, override or otherwise interfere with any Fysical -implemented communications to end users, consent panels, user settings, alerts, warnings or the like, including but not limited to those intended to notify the end user that his or her user data or location data is being collected or used, or intended to obtain consent for such collection or use. Fysical expressly reserves the right to limit the number and/or frequency of API requests in its sole discretion.
6. WARRANTY DISCLAIMER - THE FYSICAL MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, FYSICALAND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE FYSICAL MATERIALS", INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, FYSICALDISCLAIMS ANY WARRANTY THAT LICENSEE'S USE OF THE FYSICAL MATERIALS" WILL BE UNINTERRUPTED OR ERROR FREE.
7. SUPPORT AND UPGRADES - This Agreement does not entitle Licensee to any support for the Fysical Materials, unless Licensee makes separate arrangements with Fysical and pays all fees associated with such support. Any such support provided by Fysical shall be subject to the terms of this Agreement as modified by the associated support agreement.
8. LIABILITY LIMITATION - REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL FYSICAL OR ITS VENDORS, BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE FYSICAL MATERIALS OR (B) ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF FIVE HUNDRED DOLLARS ($500.00), EVEN IF FYSICAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
9. INDEMNITY - Licensee agrees that Fysical shall have no liability whatsoever for any use Licensee makes of the Fysical Materials. Licensee shall indemnify and hold harmless Fysical from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys' fees) arising from Licensee's use of the Fysical Materials.
10. TERM AND TERMINATION - This Agreement shall continue until terminated as set forth in this Section. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the license granted hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Fysical Materials (including all user data), and shall so certify to Fysical that such actions have occurred. Fysical shall have the right to inspect and audit Licensee's facilities to confirm the foregoing. Sections 8 through 13 and all accrued rights to payment shall survive termination of this Agreement.
11. GOVERNMENT USE - If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Fysical Materials are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Fysical Materials are a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Fysical Materials by the Government shall be governed solely by the terms of this Agreement.
12. EXPORT CONTROLS - Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the Fysical Materials in violation of any such restrictions, laws or regulations. By downloading or using the Fysical Materials, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.