OpenLink Developer Agreement

Observant OpenLink Developer Agreement

 

This Agreement was last updated on October 5, 2016 and is effective as between You and Us as at the date of You accepting this Agreement.

By clicking a box indicating your acceptance of the terms of this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind such entity and its Affiliates to these terms and conditions (in which case the terms 'You' or 'Your' will refer to the entity and its Affiliates). If You do not agree with these terms or do not have such authority, You must not accept this Agreement and must not access the API.

You must not access or use the API: (a) if You are Our direct competitor or (b) for any benchmarking or competitive purposes unless you have received Our prior written permission.  You must not access or use the API if (a) (a) you are not of legal age to form a binding contract with Us, or (b) you are barred from using API under applicable laws in Australia, the United States or other countries including the country in which you are resident or from which you wish to use the API.

1.     Definitions

In this Agreement capitalized terms have the meanings set forth below:

API: means an Application Programming Interface in relation to the Observant Platform and any accompanying or related documentation, source code, executable applications and other materials made available by Us.

Confidential Information: means all information disclosed by or on behalf of Us to You which is in tangible form and labelled confidential (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information may include, without limitation, proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, pricing, security or other business information. For all purposes of this Agreement, Observant Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information (other than Observant Data) that (a) was already known to You at the time of disclosure by or on behalf of Us without an obligation of confidentiality; (b) was or is obtained by You from a third party not under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement.

End User: means any individual or Entity that subscribes to the Observant Platform.

EULA: means the End User License Agreement found at http://observant.net/eula as updated from time to time.

Intellectual Property Rights: means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.

Marks: mean Observant®, and Observant's other product and service names, trademarks, service marks, branding and logos made available for use in connection with the APIs pursuant to this Agreement.

Observant Data: means data stored or transmitted on or through the Observant Platform.

Observant Platform: means the platform of services provided by Observant at URL: http://obsrv.it or any URL notified to You by Us from time to time including, individually and collectively, the applicable Software, Updates, API and Documentation.

Services: mean web or other software services or applications provided by You that utilize or interact with the API and are authorized to so interact pursuant to this Agreement.

We, Us or Our means the relevant Observant entity as set out in Clause 14 to this Agreement.

You or Your means you personally as well as the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

2.     Registration and access to Observant Data

2.1   You warrant that you will provide correct and complete registration information will be provided as required by Us and this information will be amended as necessary from time to time, in order to ensure that it is always correct and up to date.

2.2   We may in our discretion elect to monitor and/or record data relating to Your access to or use of the API to improve service or to ensure compliance with this Agreement.

2.3   You are responsible for maintaining the confidentiality of all of Your accounts and security details in order to prevent unauthorised access. You must take all necessary steps to keep access credentials secure and must inform Us without delay if these credentials are being used or could be used without authorisation.

2.4   If We reasonably consider that there are indications of possible misuse, then We have the right to block access and will inform You without undue delay.

2.5   Upon execution of this agreement, We will issue You with API credentials ("Application ID") which is required in order to access the API.  Once We have assigned an Application ID, You may access the API and test data provided by Us but must not access or attempt to access any End User Observant Data without written permission from each such End User.

2.6   In order for You to obtain access to an End User's Observant Data, that End User must submit a request from within the Observant Platform to allow End User's Observant Data to be accessed by You.  Such requests and such access will be handled using OADA protocols based on OAUTH2 and You must ensure that Your Application(s) are configured to seamlessly enable such protocols and integrate with the API in this way. 

2.7   Your OAUTH2/OADA form for use by the End User to request access to the Observant Platform must specifically set out for the benefit of the End User and Us at least the following information:

a.  that You will comply with Our's Privacy Policy and all applicable Privacy Laws;

b.  the use to which the End User Observant Data will be put; and

c.   the scope of access requested by You.

2.8   You must not deal with End User Observant Data in a manner outside the scope of the information provided pursuant to clause 2.7 herein.

3.     License

3.1   Subject to the terms and conditions of this Agreement, including the restrictions set forth in Clause 4, We grant to You a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term to: (a) use and make calls to the API to provide Services solely as agreed by End Users and permitted by this Agreement; (b) use, Observant Data as agreed by End Users; (c) use and display the Marks only to identify that the Observant Data originates from the Observant Platform.

3.2   If you provide to Us any suggestions, enhancement requests, recommendations or other feedback, then we may freely use such information as we see fit without obligation to you.

3.3   You acknowledge that We may in its discretion elect to make Your Services known to one or more current or prospective End Users.

4.     Restrictions and Responsibilities

4.1   The licenses granted in Clause 3 of this Agreement are explicitly conditional on Your adherence to the following restrictions and compliance with its responsibilities as set forth herein.

4.2   You must comply with all restrictions set forth in this Agreement, the EULA, Our Privacy Policy, all applicable laws and regulations, and any general API Guidelines in all uses of the API and Observant Data. If in Our sole discretion, we consider that You have violated or attempted to violate any term, condition or the spirit of this Agreement, the license afforded You pursuant to this Agreement may be temporarily or permanently revoked, with or without notice to You.

4.3   You must not share Your Application ID with any third party, You must keep the Application ID and all Login information secure and You must use the Application ID as Your only means of accessing the API.  You must not misrepresent or mask either your identity or your API Client's identity when using the API.

4.4   You must not cause or permit the API or the Observant Platform to be accessed for benchmarking purposes or a purpose adverse to Our interests.

4.5   You are not permitted to use the API or any Observant Data in any manner that does or could potentially undermine the security of the Observant Platform, the API, or any other data or information stored or transmitted using the Observant Platform. In addition, You must not, and must not attempt to, interfere with, modify or disable any features, functionality or security controls of the Observant Platform or the API, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Observant Platform or the API, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Observant Platform or the API.

4.6   You acknowledge that You are solely responsible, and that Observant has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of Services. Without limiting the foregoing, You will be solely responsible for (i) the technical installation and operation of Your Services; (ii) creating and displaying information and content on, through or within Your Services; (iii) ensuring that Your Services do not violate or infringe the Intellectual Property Rights of any third party; (iv) ensuring that Your Services are not offensive, profane, obscene, libelous or otherwise illegal; (v) ensuring that Your Services do not contain or introduce Malicious Software into the Observant Platform, an API, any Observant Data or other data stored or transmitted using the Observant Platform.

4.7   You must respect and comply with the technical and policy-implemented limitations of the API and the restrictions of this Agreement in providing Services. Without limiting the foregoing, You must not violate any explicit rate limitations on calling or otherwise utilizing the API.

4.8   Unless otherwise agreed, all Services which utilize or access the API, should display the following notice prominently within the application: "This product uses Observant¨ data but is not endorsed or certified by Observant".  You must only use the Observant name in order to identify the source of data subject to these rules. You must not use the Observant name, or the like to imply endorsement of any product, service, or entity, not-for-profit, commercial or otherwise.

5.     Representations, Warranties and Covenants

5.1   You must notify all End Users who use Your Services that their Observant Data will be transmitted outside the Observant Platform and that We are not responsible for the privacy, security or integrity of such data. You shall maintain and handle all Observant Data in accordance with privacy and security measures to comply with all applicable privacy laws and regulations, and in no event less protective than the measures and policies set forth in the Observant Privacy Policy.

5.2   You represent, warrant and covenant that (a) You will comply with all applicable local, 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 implement Your Services; and (b) Your Services do not and will not contain or introduce into the Observant Platform, the API, any Observant Data or other data stored or transmitted using the Service, any Malicious Software.

6.     Modifications

6.1   You acknowledge and agree that We may without prior notice modify this Agreement, the Observant Platform, the General API Policies, the Privacy Policy, and the EULA from time to time (a "Modification"). Modifications may be communicated through the Observant Platform, Observant websites (such as Observant.net or obsrv.it) or any other website owned and operated by Us or through a form of direct communication from Us to You.

6.2   You must, within thirty (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 API and making any changes to Services that may be required as a result of such Modification(s). If you do not agree to the modified Terms for an API, you should discontinue your use of that API. Your continued use of the API constitutes your acceptance of the modified Terms.

6.3   You acknowledges that a Modification may have an adverse effect on Services, including but not limited to changing the manner in which Services communicate with the API and display or transmit Observant Data. We shall have no liability of any kind to You or any user of Your Services with respect to such Modifications or any adverse effects resulting from such Modifications. Your continued access to or use of the Service or API following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue.

6.4   We reserve the right to modify the API, but will employ industry best practices to ensure that (a) You are given reasonable warning of such modifications, and (b) appropriate technical measures are in place (such as API versioning) to minimize disruption to You as a result of such modifications.

7.     Ownership

7.1   Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Us any of Your Intellectual Property Rights in Your Services or Your brands or other technology, and nothing in this Agreement transfers or assigns to You any of Our Intellectual Property Rights in the Observant Platform, the API, the Marks, or Our other technology or the respective Intellectual Property Rights in any Observant Data or of End Users.

8.     Support

8.1   Subject to this clause 8, this Agreement does not entitle You to any support for the Observant Platform or the API, unless You makes separate arrangements with Us for such support. You are solely responsible for providing all support and technical assistance to End Users of Your Services and End Users who access, deploy and/or purchase Your Services. You acknowledge and agree that We have no obligation to provide support or technical assistance to the users of Services and You shall not represent to any such users that We are available to provide such support. You agree to use commercially reasonable efforts to provide reasonable support to End Users who use Your Services and We agree to use commercially reasonable efforts to support the API for this purpose..

8.2   For the avoidance of doubt clause 8.1 does not affect the requirement that We provide support to End Users for the Observant Platform.

9.     Confidentiality

9.1   You may from time to time, have access to Confidential Information. You may use Confidential Information only to the extent necessary to exercise Your rights under this Agreement. Subject to the express permissions set forth herein, You may not disclose Confidential Information to a third party without the prior express written consent of Us. Without limiting any of Your other obligations under this Agreement, You agree that You will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that You would use to protect Your own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.

10.  Disclaimer of Warranties and Limitation of LIability

10.1ALL ASPECTS OF THE OBSERVANT PLATFORM AND THE API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT ACCESS TO THE OBSERVANT PLATFORM OR API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

10.2WE SHALL BE LIABLE ONLY FOR DAMAGE CAUSED BY AN INTENTIONAL OR GROSSLY NEGLIGENT BREACH OF DUTY BY OUR EMPLOYEES. WHERE A CLAIM FOR COMPENSATION FOR DAMAGE AGAINST US IS BASED ON SIMPLE NEGLIGENCE ON OUR PART, THEN WE SHALL BE LIABLE ONLY TO THE EXTENT THAT THE CLAIM RESTS ON AN INJURY TO LIFE, BODY OR HEALTH OR IS ATTRIBUTABLE TO A VIOLATION OF AN ESSENTIAL CONTRACTUAL OBLIGATION.

10.3UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL WE, OR OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY YOU OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

10.4NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.

10.5Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Clause 13 will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.

11.  Indemnity

11.1You indemnify and hold harmless Us and Our contractors, employees, agents, and the like from and against any and all claims and expenses including attorney's fees, arising out of Your use of the Observant Platform, Observant Data and/or the API including but not limited to violation of this Agreement.

12.  Term and Termination

12.1This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Clause 12.

12.2Each party has the right to terminate the agreement at any time by prior written notice.  

12.3We may terminate this agreement at any time without notice for serious breach of this Agreement by You or Your employees or Affiliates. Without excluding other possible examples of serious breach, the misuse of Observant Data constitutes a serious breach of this Agreement.

12.4Any termination of this Agreement shall also terminate the licenses granted to You hereunder. Upon termination of this Agreement for any reason, You must cease using, and either return to Us, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Your possession, and shall certify to Us that such actions have occurred.

12.5We may independently communicate with an End User associated with your Application ID to provide notice of the termination of your right to use the API.

12.6Upon the end of the term of this Agreement or upon termination by whatever means, those terms that by their nature are intended to continue indefinitely will continue to apply, including but not limited to: 3.2, 4.5, 4.6, 9, 10, 11, and 14.

13.  Miscellaneous

13.1You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior written consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to any affiliate or in connection with any merger or change of control or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

13.2This Agreement, together with the EULA and Our Privacy Policy constitute the entire agreement among the parties with respect to the subject matter of this Agreement. Either party's failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.

13.3If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.4The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

13.5All notices to be provided by Us to You under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service ("Courier") or national mail service to the contact mailing address provided by You to Us; or (ii) electronic mail to the electronic mail address provided for the Account owner related to Your Application ID. You must give notice to Us in writing by electronic mail to openlink@observant.net or Courier or national mail service to the relevant address set out in the table in clause 17

13.6All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.

14.  Contracting Party

14.1Our contracting party under this Agreement, who You should direct notices to, the law that will apply to the Agreement and the courts having jurisdiction are set out below:

Contracting entity

Notices should be sent to

Governing law

Courts having exclusive jurisdiction

Observant

Legal Department

Jain Agriculture Services LLC

2851 East Florence Ave

Fresno, CA 937210

California, USA

San Jose, CA, USA

Observant

The legal department

Jain Agriculture Services Australia Pty Ltd

Trading as Observant

77 Argyle Street

Fitzroy, Victoria

3065

Australia

Victoria, Australia

Victoria, Australia

 

14.2For any dispute in relation to this Agreement whether involving third parties or not, each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.