API Terms of Service Agreement
This API Terms of Service Agreement (the “Agreement”) is made between Passport Labs, Inc. (“Passport”), a Delaware corporation 128 South Tryon Street, Suite 2200, Charlotte, North Carolina 28202 and you as an individual or entity (“Licensee”) accessing, or attempting to access the Passport API by means of documentation or integration requirements associated with such Passport API.
WHEREAS, Passport provides its clients (each a “Client”) with certain products and services (“Passport Services”) for use in connection with certain of Client’s products or services (“Client Services”); and
WHEREAS, Passport agrees to grant Licensee certain access to the Passport API solely for the purpose of facilitating receipt of the Passport Services or Client Services.
NOW THEREFORE, the parties hereby agree as follows:
“API Content” means the data and content provided or otherwise made available by or on behalf of Passport through or in connection with the Passport API.
“Client Content” means any content or data provided by Client in connection with using the Passport Services.
“Licensee Application” means web or other software services or applications developed by Licensee that utilize or interact with the Passport API and are authorized to be published pursuant to this Agreement.
“Licensee Content” means any content or data provided by Licensee in connection with this Agreement, excluding Client Content and Passport Data.
“Licensee Services” means Licensee’s service for which Licensee will use the Passport API in accordance with this Agreement.
“Law” means any and all applicable laws, treaties, conventions, directives, regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction, including any subsequent amendments, modifications, and revisions thereto, or subsequent versions thereof.
“Passport API” means the Passport application programming interface and any related scripts, widgets, embeddable snippets, and other tools provided in connection therewith.
“Passport Data” means all data and information created, received, processed, or provided by Passport in performing the Passport Services or providing or operating any Passport Technology, including without limitation the Passport API, or that result from the operation of any Passport Technology.
“Passport Technology” means the Passport API, API Content, Passport Services and all other ideas, concepts, inventions, systems, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets, and other technologies, implementations, and information used by Passport in providing any of the foregoing or any of Passport’s other products or services.
2. LICENSE TERMS
2.1 API License
Subject to full compliance with all terms and conditions of this Agreement, including without limitation the terms of Section 2.2 below, Passport hereby grants to Licensee a limited, nonexclusive, nonsublicensable, nontransferable license to use and access the Passport API to: (i) receive API Content and Client Content from Passport solely for the purpose of facilitating receipt of the Passport Services or Client Services, (ii) provide Licensee Content to Passport, and (iii) develop, implement and distribute Licensee Applications solely for purpose of facilitating receipt of the Passport Services or Client Services. For the avoidance of doubt, Licensee has no right to distribute or allow access to the stand-alone Passport API or any stand-alone API Content, or to aggregate or syndicate the API Content.
2.2 Registration and Acceptance of Terms
2.3 No Other License
For clarity, this Agreement does not grant Licensee a license to any Passport Services or Passport Technology other than the Passport API and API Content as expressly set forth herein.
Licensee will integrate the Passport API and display the API Content in accordance with Passport’s integration requirements provided by Passport to Licensee from time to time.
2.6 License to Passport
Licensee hereby grants Passport a nonexclusive, royalty-free license to use, reproduce, perform, display, modify, distribute, and transmit in connection with Passport’s operation of the Passport Technology any Licensee Content provided by or on behalf of Licensee in connection with Licensee’s use of the Passport Technology provided hereunder.
2.7 Licensee Terms
2.8 Account Security
Licensee will be responsible for maintaining the security of all login credentials for any Passport Technology (including but not limited to administrative and user passwords) provided to or created by Licensee in connection with Licensee’s use of such Passport Technology, and for all uses of the related accounts with or without Licensee’s knowledge or consent. Licensee agrees to promptly notify Passport if any username or password needs to be changed or deactivated. Passport is not responsible and will not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of Licensee’s account.
2.9 API Usage
Passport reserves the right, in its sole discretion, to limit the number of API calls that Licensee will be permitted to make in connection with the Passport API during any given period. Exceeding the API limit may result in throttling or the termination of this Agreement by Passport.
Passport reserves the right to audit Licensee Content and Licensee Services to ensure compliance with the terms and conditions of this Agreement. Licensee shall cooperate with Passport to provide sufficient access to Licensee systems, books and records to verify compliance.
2.11 Service Level Guarantees
Licensee shall provide the Licensee Services with uptime of at least ninety-nine and one half percent (99.5%) calculated over a monthly period.
3. PROPRIETARY RIGHTS
As between the parties, and subject to Passport’s (or its licensors’) ownership of the Passport Technology, Licensee owns all rights, title, and interests (including all intellectual property and proprietary rights) in and to the Licensee Application, the Licensee Services and Licensee Content. Except for the limited rights and licenses expressly granted to Passport hereunder, no other license to the Licensee Content is granted. Nothing contained in this Agreement is shall transfer any rights, title or interest in Client Content.
Passport (and its licensors, as applicable) shall retain all rights, title, and interests (including all intellectual property and proprietary rights) in and to the Passport Technology, Passport Data, and Client Content. Except for the limited rights and licenses expressly granted to Licensee hereunder, no other license to the Passport Technology, Passport Data or Client Content is granted, and no other use is permitted.
Licensee shall not directly or indirectly (i) use any of Passport’s Confidential Information (defined below) to create any service, software, documentation, or data that is similar to any aspect of the Passport Technology; (ii) disassemble, decompile, reverse engineer, or use any other means to attempt to discover any source code of the Passport Technology, or the underlying ideas, algorithms, or trade secrets therein; (iii) encumber, sublicense, transfer, rent, lease, time-share, or use the Passport Technology in any service bureau arrangement or otherwise for the benefit of any third party; (iv) copy, cache, download, distribute, manufacture, adapt, create derivative works of, translate, localize, port, or otherwise modify any aspect of the Passport Technology; (v) use or allow the transmission, transfer, export, re-export, or other transfer of any product, technology, or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other Laws; (vi) block, disable, hide, or limit in any way the ability of any computer or other device (whether or not it includes or accesses the Licensee Service) to access the Passport Technology or any portion or functionality of or enabled by the Passport Technology; (vii) modify, extend, subset, or superset the Passport Technology to any extent; (viii) charge, directly or indirectly, any incremental fees (including any unique, specific, or premium charges) for access to the Passport Technology; (ix) use the Passport Technology in a manner that, as determined by Passport in its sole discretion, exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the technical documentation, usage guidelines, and other documentation provided by Passport to Licensee or (x) cause, encourage or permit any third party to engage in any of the foregoing proscribed acts. Licensee agrees to provide Passport with access to the Licensee’s Services and/or other materials related to Licensee’s use of the Passport API as reasonably requested by Passport to verify Licensee’s compliance with this Agreement and any other documentation or policy provided by Passport to Licensee.
3.4 General Learning
Notwithstanding anything to the contrary set forth herein, Licensee agrees that Passport is free to use and disclose aggregate measures of Passport Data and Passport Technology usage and performance, and to reuse all generalized knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) related to or acquired during provision of the Passport Services or Passport API or operation of Passport Technology in connection with this Agreement (including without limitation, that which it could have acquired performing the same or similar services for another party), including which may be based on Licensee Content.
Passport shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Passport Technology or any other products, services, offerings or materials any suggestions, enhancement requests, recommendations, or other feedback provided by Licensee relating to the operation of the Passport Technology.
4. PAYMENT OF FEES
Passport reserves the right to charge a fee for the use of the Passport API under written terms and conditions separately acknowledged and agreed to by Passport and the Licensee.
Each party agrees that the business, technical, financial information or client data that is designated in writing as confidential, or that a reasonable person would understand to be confidential based on the nature of the information or circumstances surrounding its disclosure, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”), which, in the case of Passport, expressly includes Passport Technology, Passport Data, and Client Content regardless of whether the same is designated in writing as confidential. Confidential Information does not include information that (i) was previously rightfully known to the receiving party without restriction on disclosure prior to disclosure by the disclosing party; (ii) is or becomes known to the general public through no act or omission on the part of the receiving party or its Representatives (defined below); (iii) is rightfully disclosed to the receiving party without confidentiality obligations by a third party without breach of any separate nondisclosure obligation; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s confidential information. The receiving party will protect Confidential Information using the same degree of care that it uses to protect its own information of a similar nature but no less than reasonable care, and will hold in confidence and not use or disclose any Confidential Information except solely to the extent necessary to perform the receiving party’s obligations or exercise its rights under this Agreement. The receiving party shall not disclose the Confidential Information of the disclosing party except to the receiving party’s employees, consultants, and independent contractors who need to know such information for the purposes set forth herein and who are informed of the confidential nature of such information and are bound by confidentiality obligations consistent with those herein (collectively, “Representatives”). The receiving party shall be responsible for any breaches of confidentiality by its Representatives. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to the disclosing party or destroyed, and receiving party will make no further use of such materials. If required by Law, the receiving party may disclose Confidential Information of the disclosing party, solely to the extent required by applicable Law, but will give adequate prior notice of such disclosure to the disclosing party (to the extent legally permitted) to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
6. PROTECTION OF DATA
Licensee represents that it is compliant with, and at all times during the term of this Agreement will remain compliant with, applicable Payment Card Industry Data Security Standards. Licensee will protect the privacy of all customer payment and other non-public personal information in Licensee’s possession in connection with the Licensee Services. All such information will be maintained in accordance with current applicable federal and state laws.
7. TRADEMARK LICENSE
Subject to compliance with the terms and conditions hereof, each party hereby grants to the other party during the term of this Agreement a worldwide, non-exclusive, non-transferable, fully paid license to display the other party’s name, trademarks, and logos (collectively, “Marks”) for the sole purposes of communicating integration capability between the applicable Client Services, Licensee Services and Passport Services. Any use of the other party’s Marks will be in accordance with the trademark guidelines provided by the party who owns the Marks, and any and all goodwill arising from any use of any Marks shall inure to the benefit of the party who owns such Marks.
8. WARRANTIES AND DISCLAIMERS
Each party represents and warrants that: (i) it is a duly organized and validly existing under the Laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions, and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms and (iv) the execution, delivery, and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment, or understanding, oral or written, to which it is a party or by which it may be bound.
8.2 Additional Licensee Warranties
Licensee represents and warrants that (i) Licensee owns all rights, title and interest in and to the Licensee Application, Licensee Content and Licensee Services, or that Licensee has otherwise secured all necessary rights in the Licensee Application, Licensee Content and Licensee Services as may be necessary to permit the access, use, and distribution thereof as contemplated by this Agreement, and that the Licensee Application, Licensee Content and Licensee Services do not infringe on the intellectual property rights of any third party; (ii) Licensee shall at all times use the Client Content and the Passport Technology, including without limitation the Passport API and API Content, in accordance with this Agreement and (iii) the Licensee Services shall be performed in a competent, diligent, timely, professional, and workmanlike manner consistent with the highest industry standards of skill, care, and judgement.
THE PASSPORT TECHNOLOGY IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, PASSPORT DOES NOT WARRANT THAT THE PASSPORT TECHNOLOGY, INCLUDING WITHOUT LIMITATION THE PASSPORT API, WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, PASSPORT HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PASSPORT API AND PASSPORT TECHNOLOGY INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
Licensee agrees to defend, indemnify, and hold harmless Passport, its officers, directors, shareholders, employees, agents, affiliates, parent, and subsidiary companies, and Clients against any and all costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded in a settlement or by a court, arising from (i) any actual or alleged breach of this Agreement; (ii) any third party claim or allegation relating to or arising out of any aspect of the Licensee Content or Licensee Services; (iii) any breaches of Licensee’s agreements or terms with the Client; or (iv) any third party claim that the use of Licensee Content or Licensee Services as permitted hereunder infringes upon any United States patent, copyright or trademark of such third Party, or misappropriates the trade secret of such third party.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL PASSPORT BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS, OR SERVICES; (II) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL; OR (III) DAMAGES, IN THE AGGREGATE, IN EXCESS OF ONE HUNDRED DOLLARS ($100), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
11. TERM AND TERMINATION
This Agreement shall commence as of the date Passport, in its sole discretion, approves Licensee’s registration and continue in effect unless sooner terminated in accordance with this Section 11.
Passport may immediately suspend Licensee’s use of the Client Content, the Passport Technology (or any part thereof), or any API Content at any time if Passport believes, in its sole discretion, that: (i) Licensee has violated this Agreement or any other agreement between Passport and Licensee, or (ii) it is necessary to do so to protect the interests of Passport, Client, or Passport’s or Client’s users.
Passport may change or discontinue the availability of some or all parts of the Client Content, the Passport Technology, or API Content at any time for any reason.
Licensee may terminate this Agreement by discontinuing its use of the Passport API. Passport may terminate this Agreement at any time for any reason without prior notice.
11.5 Effects of Termination
Upon any expiration or termination of this Agreement, all corresponding rights, obligations, and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations, if any) shall survive; (ii) Licensee’s rights to access or use the Passport API and all API Content shall cease, and Licensee shall immediately stop using and making available the Passport API and any API Content; and (iii) the provisions of Sections 1, 3, 5, 8, 9, 10 and 11 shall survive. Passport reserves the right to block, disable or otherwise terminate access to the Passport API and/or API Content upon any termination or expiration of this Agreement.
12.1 Licensee shall have and maintain in force while accessing the Passport API, the following insurance coverage with an insurer with an A.M. Best Rating of A- or better: (i) commercial general liability insurance with a minimum limit of $1,000,000 per occurrence, $2,000,000 in the aggregate, (ii) technology errors and omissions and professional liability insurance, including cyber liability coverage, network security and privacy coverage with a minimum limit of $10,000,000 in the aggregate, and (iii) umbrella liability insurance with a minimum limit of $5,000,000 per occurrence.
13. GENERAL PROVISIONS
13.1 Entire Agreement
This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Passport may modify the terms of this Agreement, or any portion thereof, at any time and any such modifications shall be effective immediately once posted on the Passport website. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.2 Governing Law
This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in Mecklenburg County, North Carolina shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, and each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 3 or 5, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated in this Agreement or at such other address designated by written notice.
13.5 Force Majeure
In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the prior written consent of the non-assigning party, provided however, Passport may freely assign or transfer this Agreement in the event of a merger, change of control or sale of substantially of its assets. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties hereto.
13.7 Independent Contractors
The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.