PLEASE READ THESE API TERMS OF USE (“TERMS”) CAREFULLY. THESE TERMS CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN YOU (“YOU” OR “YOUR”) AND PROJECT RECAPTURE INC. (“PROJECT RECAPTURE”, “WE”, “US” OR “OUR”). THESE TERMS GOVERN YOUR ACCESS TO AND USE OF THE PROJECT RECAPTURE API (AS DEFINED HEREIN). BY ACCESSING OR USING THE PROJECT RECAPTURE API, YOU AGREE TO BE BOUND BY THESE TERMS (INCLUDING ANY LINKED DOCUMENTS REFERRED TO IN THESE TERMS), AS REVISED FROM TIME TO TIME, EFFECTIVE AS OF THE FIRST DATE THAT YOU ACCESS OR USE THE PROJECT RECAPTURE API. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT ACCESS OR USE THE PROJECT RECAPTURE API. IF YOU ARE DISSATISFIED WITH THESE TERMS OR ANY OTHER TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE PROJECT RECAPTURE API, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESS TO AND USE OF THE PROJECT RECAPTURE API. YOU REPRESENT THAT YOU ARE AT LEAST THE LEGAL AGE OF MAJORITY IN YOUR JURISDICTION. IF YOU ARE ACCESSING OR USING THE PROJECT RECAPTURE API ON BEHALF OF AN ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ORGANIZATION TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” WILL REFER TO SUCH ORGANIZATION. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE THE PROJECT RECAPTURE API.
1. DEFINITIONS. In these Terms, capitalized terms shall have the meanings set forth below.
(a) “Applications” mean web or other software services or applications owned by or licensed to you that utilize or interact with the Project Recapture API and are authorized to be connected to the Project Recapture Services pursuant to these Terms.
(b) “Customer Data” means data submitted by or for Customers to the Project Recapture Services, or collected or processed by or for Customers using the Project Recapture Services.
(c) “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including viruses, worms, time bombs and Trojan horses.
“Personal Data” means any information relating to an identified or identifiable natural person.
(d) “Project Recapture API” means the application programming interface (and any documentation that Project Recapture makes available) that provides access to the Project Recapture SaaS platform and any associated tools (the “Project Recapture Services”), including sample code that enables interactions with Project Recapture’s SaaS platform and your Application(s), as updated from time to time.
2. PURPOSE AND LICENSE. Subject to your compliance with these Terms, Project Recapture grants to you a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term (as defined in Section 11(a)) to: (i) use and make calls to the Project Recapture API solely for use by you for Project Recapture customers (“Customers”) in connection with the Project Recapture Services; and (ii) use, reproduce, distribute, and transmit Customer Data, to the extent necessary to format and display it through the Project Recapture Services.
3. RESTRICTIONS AND RESPONSIBILITIES.
(a) You must comply with all restrictions set forth in these Terms in all uses of the Project Recapture API and Customer Data. If Project Recapture believes, in its sole discretion, that you have violated or attempted to violate any term, condition or the spirit of these Terms, the license afforded to you pursuant to these Terms may be temporarily or permanently revoked, with or without notice to you.
(b) In order to access and use the Project Recapture API, you must obtain Project Recapture API credentials (a “Token”) from Project Recapture. You shall: (i) not share your Token with any third party; (ii) keep such Token and all login information secure; and (iii) use the Token as your sole means of accessing the Project Recapture API.
(c) You may not use the Project Recapture API to create or utilize services or products that are the same or materially similar to those products or services offered by the Project Recapture API or the Project Recapture Services. Subject to the preceding sentence and the parties’ other rights and obligations under these Terms, each party agrees that the other party may develop services or products that are similar to or otherwise compete with such party’s services and products.
(d) You shall not, under any circumstances, repackage or resell the Project Recapture API or the Project Recapture Services, or any part thereof. You are not permitted to use the Project Recapture API, Project Recapture Services or any Customer Data in any manner that does or could potentially undermine the security of the Project Recapture Services, the Project Recapture API, Customer Data or any other data or information stored or transmitted using the Project Recapture Services. In addition, you shall not, and shall not attempt to: (i) interfere with, modify or disable any features, functionality or security controls of the Project Recapture API or Project Recapture Services; (ii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Project Recapture API or Project Recapture Services; or (iii) reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Project Recapture API or the Project Recapture Services.
(e) You acknowledge that you are solely responsible, and that Project Recapture has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of any application, device, system, network or software connected to the Project Recapture API (“Your Systems”). Without limiting the foregoing, you shall be solely responsible for (i) the technical installation and operation of Your Systems; (ii) creating and displaying information and content on, through or within Your Systems; (iii) ensuring that Your Systems do not violate or infringe the intellectual property rights of any third party; (iv) ensuring that its Applications do not contain or introduce Malicious Code into the Project Recapture API, Project Recapture Services, any Customer Data or other data stored or transmitted using the Project Recapture Services; and (v) ensuring that Your Systems are not designed to or utilized for the purpose of spamming any person.
(f) You will respect and comply with the technical and policy-implemented limitations of the Project Recapture API and the restrictions of these Terms in your use of the Project Recapture API. Without limiting the foregoing, you shall not violate any explicit rate limitations on calling or otherwise utilizing the Project Recapture API.
(g) You shall not make any modifications to any Customer Data, other than as reasonably necessary to modify the formatting of such Customer Data in order to display it in a manner appropriate for the Project Recapture Services.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. You hereby represent, warrant and covenant that:
(a) to the extent the Applications transmit Customer Data outside of the Project Recapture Services, you have, as required by any applicable law, regulation or policy, notified Customers that Customer Data will be transmitted outside of the Project Recapture Services and that Project Recapture is not responsible for the privacy, security or integrity of such Customer Data;
(b) its use of the Project Recapture API will not, without appropriate prior Customer consent or except to the extent required by applicable law: (i) modify the content of Customer Data in a manner that adversely affects the integrity of Customer Data; or (ii) disclose Customer Data to any third party;
(c) it will comply with all applicable local, provincial, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop, implement and use the Project Recapture API;
(d) its use of the Project Recapture API does not and will not introduce any Malicious Code into the Project Recapture Services, the Project Recapture API, any Customer Data or other data stored or transmitted using the Services;
(e) it has all rights and consents necessary to connect the Customer Data to the Project Recapture API, and to transfer and disclose the Customer Data in such manner; and
(f) its use of the Project Recapture API does not and will not violate any rights of any third party who is the owner of any data, system, device, hardware or software to which the Project Recapture API is connected.
5. MODIFICATIONS.
(a) You acknowledge and agree that Project Recapture may modify these Terms and the Project Recapture API from time to time in its sole discretion (a “Modification”).
(b) You are responsible to remain informed of any Modification to these Terms or the Project Recapture API. You further acknowledge and agree that such Modifications may be implemented at any time and without any notice to you. You shall, within 30 days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) (the “Conformance Period”), comply with such Modification(s) by implementing and using the most current version of the Project Recapture API. You acknowledge that a Modification may have an adverse effect on the Project Recapture Services or any interactions with any third party systems, device, hardware or software, including (without limitation) changing the manner in which the Project Recapture Services communicate with the Project Recapture API or display or transmit Customer Data. Project Recapture shall have no liability of any kind to you with respect to such Modifications or any adverse effects resulting from such Modifications. Your continued access to or use of the Project Recapture API following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue.
6. OWNERSHIP.
(a) Reservation of Rights. Project Recapture shall maintain all rights, title and interest in and to all of its respective intellectual property rights. The rights granted to you to access and use the Project Recapture API under these Terms do not convey any additional rights in the Project Recapture API or Project Recapture Services, or in any intellectual property rights associated therewith, and all copies, modifications, improvements, developments, enhancements and derivative works of any of them howsoever created, even if unauthorized or on the request of or based on any suggestion, idea or feedback, from you.
(b) Customer Data. As between the parties and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Neither Project Recapture nor you acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data.
(c) Rights in Derivative Data. The Project Recapture Services compile, store and use aggregated data and system usage, analytics and diagnostic information to monitor and improve the Project Recapture Services and for the creation of new products. Project Recapture will collect, process and aggregate Customer Data and other such information and data and create anonymized, aggregated data records and use such anonymized and aggregated data, and all modifications thereto and derivatives thereof (“Derivative Data”) to improve the Project Recapture Services, develop new products and services, to understand usage, and for any other business purpose. Project Recapture will own all rights in such data and any algorithm, computational or cumulative results of such Derivative Data. For clarity, this Derivative Data is no longer associated with Customer and as such is not Customer Data.
7. DATA PROTECTION.
(a) Processing of Personal Data. Each party shall secure Personal Data with all necessary safeguards appropriate to the level of sensitivity of the Personal Data. Each Party shall only process Personal Data on behalf of and in accordance with Customer’s documented instructions and applicable law for the following purposes: (i) processing in accordance with these Terms; (ii) processing initiated by Customers, users or end users in their use of the Project Recapture Services; and (iii) processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with these Terms.
(b) Technical and Organizational Safeguards. In connection with each party’s provisioning of their respective services, each party will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data. Those safeguards will include (without limitation) measures for preventing access, use, modification or disclosure of Personal Data by each party’s personnel (including employees, agents and contractors) except (i) to provide the service and prevent or address service or technical problems, (ii) as compelled by law and upon identification of lawful authority, or (iii) as expressly permitted in writing by Customer. Each party will, in connection with providing the services, comply with applicable law, as well as their respective privacy policies. Each party will ensure that its personnel (including employees, agents and contractors) engaged in the processing of Personal Data are informed of the confidential nature of the Personal Data and have received appropriate training on their responsibilities and each party shall take commercially reasonable steps to ensure the reliability of any personnel (including employees, agents and contractors) engaged in the processing of Personal Data.
(c) Data Breach. Upon becoming aware of any unlawful access to any Personal Data, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Data, or any actual loss of or suspected threats to the security of Personal Data (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), the responsible party will promptly notify the other party and the Customer of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated Customers, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Customer with detailed information about the Security Incident. The responsible party will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Customer in doing so; and will provide prior notice to Customer of, and will not undertake any, proposed communications to third parties related to a Security Incident without Customer’s prior written approval, not to be unreasonably withheld, conditioned or delayed. The responsible party will work with and coordinate with Customer on any such notices in any event. The responsible party will comply with this section at its cost unless the Security Incident arose from (i) Customer’s negligent or willful acts, (ii) the other party’s negligent or willful acts, or (iii) the responsible party’s compliance with Customer’s express written instructions. The parties agree to coordinate and cooperate in good faith on developing the content of any related public statements or any required notices for the affected persons.
8. SUPPORT. These Terms do not entitle you to any support for the Project Recapture API, unless you enter into a separate written agreement with Project Recapture for support services.
9. DISCLAIMERS. ALL ASPECTS OF THE PROJECT RECAPTURE API, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND, AND PROJECT RECAPTURE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT PROJECT RECAPTURE DOES NOT WARRANT THAT THE PROJECT RECAPTURE API OR THE PROJECT RECAPTURE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS CODE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM PROJECT RECAPTURE OR THROUGH THE PROJECT RECAPTURE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10. LIMITATION OF LIABILITY; INDEMNIFICATION.
(a) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL PROJECT RECAPTURE OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY YOU OR SUCH THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE PROJECT RECAPTURE API, REGARDLESS OF WHETHER PROJECT RECAPTURE HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, PROJECT RECAPTURE’S MAXIMUM AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY FOR ALL CLAIMS ARISING OUT OF THESE TERMS SHALL IN NO EVENT EXCEED ONE HUNDRED CANADIAN DOLLARS (CAD$100.00). ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN 1 YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.
(c) The limitations set forth in this Section 10 will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
(d) YOU SHALL INDEMNIFY, DEFEND AND HOLD PROJECT RECAPTURE HARMLESS AGAINST ALL CLAIMS BROUGHT BY A THIRD PARTY AGAINST PROJECT RECAPTURE ARISING FROM OR RELATED TO YOUR ACCESS OR USE OF THE PROJECT RECAPTURE API.
11. TERM AND TERMINATION.
(a) Term. These Terms shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 11 (the “Term”). Either party may terminate these Terms at any time, for any reason or for no reason, including (without limitation) if you violate any provision of these Terms.
(b) Effect of Termination. Any termination of these Terms shall also terminate the licenses granted to you hereunder. Upon termination of these Terms for any reason, you shall cease using the Project Recapture API immediately. Any provision in these Terms that contemplates continuing obligations on a party shall survive the termination of these Terms.
12. GENERAL.
(a) Governing Law. These Terms will be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to conflict of law rules or principles.
(b) Assignment. You may not assign any of the rights or obligations granted hereunder, in whole or in part, whether voluntarily or by operation of law, contract, merger (whether you are the surviving or disappearing entity), share or asset purchase, consolidation, through government action or otherwise except with the prior written consent of Project Recapture. Any attempted assignment in violation of this paragraph is null and void.
(c) No Partnership. These Terms do not create or imply any partnership, agency or joint venture and neither party has any authority of any kind to bind the other in any respect.
(d) No Waiver. No waiver by Project Recapture of any part of these Terms, inclusive of any violation or breach, shall be deemed to be a waiver of any other provision of these Terms or be deemed to be a waiver of any subsequent violation or breach. No waiver is to be interpreted as a continuing waiver unless agreed to in writing by Project Recapture.
(e) Severability. If any provision of these Terms is determined to be invalid, illegal or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions will remain in full force and effect.
(f) No Third-Party Beneficiary. The Project Recapture API is for your benefit and not for any other person or entity, and Project Recapture shall not owe any obligation to any of your customers, end users or other third party, whether Project Recapture has knowledge of or has been advised of such third party.
(g) Additional Terms. If you enter into additional written terms relating to the Project Recapture API (the “Additional Terms”), both these Terms and the additional terms will apply to your use of the Project Recapture API. If there is a conflict between these Terms and any Additional Terms applicable to the Project Recapture API, the Additional Terms will govern to the extent of the inconsistency.