This Application Programming Interfaces License Agreement (this ” Agreement “) is a legal and binding contract between Highend Technologies LLC, a Saint Vincent and the Grenadines limited liability company with Limited Liability Company Number 852 LLC 2021, its successors and assigns (hereinafter ” Zignaly “, “ our ”, “ us ” or “ we ”) and the party or parties using the API (the ” Licensee ” or “ you ”). By installing, downloading, copying, or otherwise using the Application Programming Interface (“ API ”), you agree to be and will be bound by the terms of this Agreement as a condition of your license. If you do not agree to the terms of this Agreement, you shall not use the API.
The terms used in this Agreement shall have the same meanings as in the Terms of Service except as otherwise provided herein.
DEFINITIONS AND INTERPRETATION
“ Application ” shall mean the software applications or web applications used or developed by the Licensee in connection with the API.
” Application Programming Interface ” or ” API ” shall mean Zignaly’s application programming interfaces and their associated tools including but not limited to object code, software libraries, software tools, sample source code, published specifications, software development kits (“SDKs”) and the Documentation.
” Documentation ” shall include, without limitation, programmer guides, CDs, manuals, materials, and information appropriate or necessary for use in connection with the API.
“ Third Party Software ” shall include, without limitation, development tools, compilers and other software and technology of third parties.
1.2. Construction. In this Agreement, unless the context otherwise requires
words importing the singular include the plural and vice versa;
words importing a gender include both gender and the neuter;
words importing persons include companies, associations and bodies of persons whether corporate or not;
the words: “may” shall be construed as permissive; “shall” or “will” shall be construed as imperative;
the term “include” or “includes” means includes, without limitation, and “including” means including, without limitation;
the terms “hereof”, “herein” and “hereunder” refer to the Agreement as a whole and not to any particular provision of this Agreement; and
the headings contained in this Agreement are for reference purposes only, and shall not affect in any way the meaning or interpretation of the Agreement.
2.1. Grant of License. Subject to the terms of this Agreement, Zignaly hereby grants the Licensee a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty-free license under Zignaly’s intellectual property rights during the term of this Agreement (i) to use the API solely for the purpose of Licensee’s internal development efforts to develop Applications to work in conjunction with the Services referenced in the API; (ii) to distribute or allow access to Licensee’s integration of the APIs within the Application to end users of the Application; and (iii) to display the data received from the APIs within the Application.
2.2. Revocation of License . We may revoke this license at any time for any reason at our sole discretion. We may also limit or suspend API calls from your Application if we determine in our sole discretion the number of API calls to the Services is excessive or you are violating this Agreement.
2.3. License Restrictions . You shall not:
disclose or provide the APIs to any person or entity other than to Licensee’s employees or independent contractors who are individuals, provided (i) such persons enter into an agreement with Licensee at least as protective of Zignaly’s rights as this Agreement, and (ii) Licensee hereby agree to be responsible for, and liable to Zignaly for, any breaches of such agreements by Licensee’s independent contractors;
use the APIs for any illegal, unauthorized or otherwise improper purposes, or in any manner which would violate this Agreement or the Documentation, or breach any laws or regulations, or violate the rights of third parties;
remove any legal, copyright, trademark or other proprietary rights notices contained in or on materials Licensee receive or access pursuant to this Agreement, including but not limited to, the APIs and the Documentation;
reproduce, distribute, license (whether or not through multiple tiers), transfer or otherwise provide or make the API available to any third party;
introduce into the Services any viruses, worms, Trojan horses, backdoors, or other malicious code through the Application or otherwise;
interfere with or disrupt the Services, or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
use the APIs in a manner that, as determined by Zignaly 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 Documentation;
attempt to derive the source code or object code for the Services or any component thereof, including by reverse engineering, decompiling, disassembling, or similar means;
use your Application to interfere with or attempt to interfere with or disrupt the integrity, security, functionality, or proper working of the Services; or
access and/or use the Services and API in order to build a similar or competitive product.
OTHER RIGHTS AND LIMITATIONS
3.1. Copies. You may copy the API only as necessary to exercise your rights hereunder.
3.2. No Reverse Engineering. You shall have no right to any source code for any of the software in the API, except for the explicit rights to use the source code as provided to you hereunder. You may not reverse engineer, decompile, modify, disassemble or otherwise alter the API or any part thereof or otherwise reduce the API to human-perceivable form in whole or in part, except and only to the extent that such activity is expressly permitted by this Agreement or applicable laws.
3.3. Third Party Software . You acknowledge that effective utilisation of the API may require the use of Third Party Software. You are solely responsible for procuring such Third Party Software and technology and the necessary licenses for the use thereof. We make no representation or warranty concerning Third Party Software and we shall have no obligation or liability with respect to Third Party Software.
3.4. No right is granted to Licensee to sublicense its rights hereunder. All rights not expressly granted are reserved by Zignaly and, except as expressly set forth herein, no license is granted by Zignaly under this Agreement directly, by implication, estoppel or otherwise, under any patent, copyright, trade secret or trademark or other intellectual property rights of Zignaly. Nothing herein shall be deemed to authorize Licensee to use Zignaly’s trademarks or trade names in Licensee’s Application, advertising, marketing, promotional, sales or related materials. Zignaly reserves all rights not otherwise expressly granted in this Agreement.
3.5. No assertion by Licensee. Licensee agrees not to assert any patent rights or other intellectual property rights related to the API or applications developed using the API against Zignaly, Zignaly Entities, Zignaly’s Affiliated Entities, distributors, Licensees, or other licensees of the API for making, using, selling, offering for sale, or importing any products or technology developed using the API.
4.1. Ownership. Zignaly or its licensors shall own and retain all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the API and any corrections, bug fixes, enhancements, updates, improvements, or modifications thereto and Licensee hereby irrevocably transfers, conveys and assigns to Zignaly all of its right, title, and interest therein. Zignaly shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary protections with respect thereto. Licensee acknowledges that the license granted under this Agreement does not provide Licensee with title or ownership to the API, but only a right of limited use under the terms and conditions of this Agreement.
4.2. Promotion. Licensee grants Zignaly a worldwide, non-exclusive, non-assignable and non-transferable licence to display the Licensee trade names, trade marks, service marks, logos and domain names to promote or advertise your use of the API. We may, without your consent, publicly refer to you, orally or in writing, as a licensee of the API. We may also publish your name and logo on our Services, in press releases, and in promotional materials without additional consent or notice to you.
Licensee agrees to report to Zignaly any errors or difficulties discovered and the characteristic conditions and symptoms of such errors and difficulties. Zignaly is in no way obligated to provide Licensee with any error correction or support, but may provide whatever error correction and/or support services Zignaly may determine in its sole discretion (and anything it provides in connection therewith will be deemed part of the API). Nothing herein shall be construed to require Zignaly to provide support services or updates, upgrades, bug fixes or modifications to the API.
The API (including, without limitation, all improvement, derivatives, modifications and the like) constitutes Zignaly’s confidential information (“ Confidential Information ”). Licensee hereby agrees (i) to hold the Confidential Information in confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions the Licensee employs with respect to its own confidential materials), (ii) not to divulge any Confidential Information to any third person (except consultants, subject to the conditions stated below), (iii) not to use any Confidential Information except for the purposes set forth in this Agreement, and (iv) not to copy or reverse engineer any Confidential Information. Any employee or consultant given access to the Confidential Information must have a legitimate “need to know” and shall be similarly bound in writing. Licensee acknowledges and agrees that due to the unique nature of Zignaly’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder and therefore, that upon any such breach or any threat thereof, Zignaly shall be entitled to appropriate equitable relief in addition to whatever remedies it might have at law.
7.1. Commencement. The effective date of this Agreement is the start of use of the API by the Licensee.
7.2. Non-Compliance . This Agreement shall terminate automatically if the Licensee fails to comply with any of the terms and conditions of this Agreement and the Licensee shall be liable to Zignaly, the Zignaly Entities and its suppliers for damages or losses caused by its non-compliance.
7.3. Termination . Either party shall have the right to terminate the Agreement, upon a ten (10) days written notice to the other party.
7.4. Documentation and Copies. Upon termination of this Agreement, Licensee will immediately cease using the Documentation, and Licensee agrees to destroy all adaptations or copies of the API and Documentation or return them to Zignaly upon termination of this License.
7.5. Audit. Zignaly shall have the right to audit the Licensee use of the API in conjunction with this Agreement, and the Licensee shall provide reasonable assistance for this purpose.
7.6. Survival. Zignaly rights and Licensee obligations contained in this Agreement survive any expiration or termination of this Agreement.
DISCLAIMER OF WARRANTIES
The Licensee acknowledges that the API, and any services are provided “AS IS” without warranty of any kind.
ZIGNALY AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES RELATING TO THE API OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ZIGNALY OR THROUGH OR FROM THE API OR THE DOCUMENTATION SHALL CREATE ANY WARRANTY. ZIGNALY DOES NOT WARRANT THAT THE API AND DOCUMENTATION ARE SUITABLE FOR LICENSEE’S USE, THAT THE API OR DOCUMENTATION ARE WITHOUT DEFECT OR ERROR, THAT OPERATION WILL BE UNINTERRUPTED, OR THAT DEFECTS WILL BE CORRECTED. ZIGNALY MAKES NO WARRANTY REGARDING THE RESULTS OF THE USE OF THE API AND DOCUMENTATION.
You agree to indemnify and hold Zignaly, its subsidiaries, affiliates, agents, employees, agents, successors and assigns (” Zignaly Entities ”) harmless from and against any and all liabilities, losses, damages, costs and expenses, including attorney’s fees, incurred by any of Zignaly Entities arising out of of your use of the API, your connection to the API, or your violation of the Agreement.
Zignaly Entities reserve the right to exercise sole control over the defense, at your expense, of any claim subject to indemnification under this section.
LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT WILL ZIGNALY ENTITIES AND THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUPPLIERS OR CONTRACTORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR SIMILAR DAMAGES OR LIABILITIES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, INFORMATION, REVENUE, PROFITS OR OTHER BUSINESSES OR FINANCIAL BENEFITS) ARISING OUT OF OR RELATING TO THE USE OR THE INABILITY TO USE THE API, ANY PERFORMANCE OR NON-PERFORMANCE OF THE API OR THE SERVICES, APPLICATION, ANY THIRD PARTY SOFTWARE, ITS CONTENT OR FUNCTIONALITY, WHETHER UNDER CONTRACT, STATUTE, STRICT LIABILITY OR OTHER THEORY EVEN IF THE ZIGNALY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU ARE DISSATISFIED WITH THE API, THE DOCUMENTATION, ANY PORTION OF THE SERVICES OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE API AND/OR THE SERVICES.
From time to time, Zignaly may fail to require or strictly enforce compliance with relation to any provision in this Agreement. Zignaly may also fail to exercise any or all of its rights empowered herein. Any such failure shall not be construed as a waiver or relinquishment of Zignaly’s right to assert or rely upon any such provision or right in that or in any other instance. If applicable, an express waiver given by Zignaly of any condition, provision, or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such condition, provision or requirement.
GOVERNING LAW AND JURISDICTION
This Agreement shall be interpreted by the English law without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction.
You agree to submit any Dispute (as defined below) to arbitration in accordance with the terms of Section 13. To the extent that the agreement to arbitrate is ineffective or void, you agree to submit to the exclusive jurisdiction of the courts of England.
SUBMISSION TO ARBITRATION
Any dispute, claim, suit, action, cause of action, demand, or proceeding arising out of or related to this Agreement (any “Dispute”) that is not settled by you and Zignaly within 30 days from the date that either party notifies the other party in writing of the Dispute shall be referred to and finally settled by arbitration. Further, the parties hereby agree that:
To attempt informal resolution prior to any demand for arbitration for at least 30 days before initiating any arbitration or court proceeding. Such informal negotiations commence upon receipt of written notice from you. If we cannot resolve the dispute on an informal basis, you and we agree that any dispute arising under this Agreement shall be finally settled in binding arbitration, on an individual basis;
That any dispute, controversy or claim arising out of or relating to the Terms, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the London International Arbitration Centre (“IAC”) rules;
That the number of arbitrators shall be one;
That the place of arbitration shall be the IAC, unless the Parties agree otherwise;
That the language to be used in the arbitral proceedings shall be English;
That the courts in Saint Vincent and the Grenadines have non-exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration;
That the arbitrator has the authority to grant any remedy that would otherwise be available in court; and
That the parties shall split the costs and expenses of any arbitration and bear their own legal costs and expenses.
WAIVER OF CLASS ACTION RIGHTS AND CLASS WIDE ARBITRATION
You and Zignaly agree that any claims relating to this Agreement or to your relationship with Zignaly as a Licensee of the API (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of this Agreement) shall be brought against the other party in an arbitration on an individual basis only and not as a plaintiff or class member in a purported class or representative action. You and Zignaly further agree to waive any right for such claims to be brought, heard, or arbitrated as a class, collective, representative, or private attorney general action, to the extent permissible by applicable law. You agree not to join with any other individual or entity or group of individuals or entities for the purpose of seeking to resolve the respective Disputes on a consolidated or representative basis.
15.1. Assignment . You may not assign any rights and/or licenses granted under this Agreement. We reserve the right to assign our rights without restriction, including without limitation to any of our affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. Any attempted transfer or assignment in violation hereof shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
15.2. Severability . If any provision of this Agreement shall be determined to be invalid or unenforceable under any rule, law or regulation or any governmental agency, local, state, or federal, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under any applicable law and the validity or enforceability of any other provision of the Terms shall not be affected.
15.3. Force Majeure. We shall have no liability for any failure or delay resulting from any abnormal or unforeseeable circumstances outside our reasonable control, the consequences of which would have been unavoidable despite all efforts to the contrary, including without limitation governmental action or acts of terrorism, war, earthquake, fire, flood, or other acts of God, labor conditions, delays or failures caused by problems with another system or network, mechanical breakdown or data-processing failures or where we are bound by other legal obligations.
15.4. Survival. Upon termination of your account or this Agreement for any other reason, all rights and obligations of the parties that by their nature are continuing will survive such termination.
15.5. Third Party Rights . The Terms are not intended and shall not be construed to create any rights or remedies in any parties other than you and us and any affiliates which each shall be a third party beneficiary of the Terms, and no other person shall assert any rights as a third party beneficiary hereunder.
LICENSEE ACKNOWLEDGES HAVING RECEIVED, READ AND UNDERSTOOD THE FOREGOING TERMS AND HEREBY AGREES TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS HEREOF.