API Terms of Use
API Terms of Use
This API Terms of Use agreement ("Agreement") is entered into between ESHA Research, Inc., an Oregon corporation, ("ESHA") and you, the party executing this Agreement (ALicensee@).
Recitals
A. ESHA is an Oregon corporation, based in Salem, Oregon, in the business of developing, maintaining and marketing software and databases used for nutritional analysis. ESHA has developed, and is the sole owner of, certain nutritional analysis software and an extensive database of nutritional values used with such software. ESHA wishes to license the API for its web application software (the “API”) to facilitate the development, by third party developers, of third party web or mobile applications that can use all or part of ESHA’s licensed nutritional values database (the “Database”).
B. Licensee is a third party software developer who wishes to obtain a license to ESHA’s web application API for the purpose of developing one or more web or mobile applications that can use all or part of ESHA’s Database.
Terms
In consideration of the terms, representations, warranties, covenants and conditions below, the parties agree as follows:
1. Grant of Development License. Subject to the terms and conditions below, ESHA grants Licensee a limited, nontransferable, nonexclusive license to download and use a copy of the ESHA API for the sole purpose of developing web or mobile applications designed to use all or part of ESHA’s Database. The API will include access to a limited portion of the Database to be used solely for developmental purposes.
2. Limitations on License. License may use the ESHA API solely as licensed in this Agreement. Licensee is not licensed to do any of the following: (a) copy, sublicense, rent, lease, lend or otherwise transfer or publish the API or any licensed Database, or Licensee=s rights under this Agreement, without the prior written consent of ESHA; (b) except for developmental purposes, use the API, or any licensed Database, internally or for the benefit of third parties; (c) remove or obscure the ESHA copyright or trademark notices appearing on or with the API or any licensed Database; (d) compile the Software from one form to another or attempt to modify, convert, reverse engineer, reverse compile, change or reverse assemble it; or (e) compile or extract, directly or indirectly, the data from any licensed Database.
3. Third Party Branding. Licensee may use the API to develop applications designed to use the Database under private branding, provided that the Licensee‑branded application will: (a) contain ESHA=s copyright and trademark notices in the “About” section; and (b) on every page of the website or mobile application screen, contain an acknowledgment of the ESHA Database (e.g., APowered by the ESHA Research Database@). Licensee shall not otherwise use ESHA=s name or trademarks without ESHA=s prior written consent.
4. License Fees.
a. Subject to the terms and conditions of this Agreement, Licensee may download and use the API without additional charge.
b. In the event Licensee wishes to license from ESHA the right to access all or part of the Database in connection with commercializing a new web or mobile application, such license shall be separately negotiated and documented. ESHA reserves the absolute right to grant or deny, in its sole discretion, licenses to its Database.
5. Updates. ESHA reserves the right to create and post updated versions of the API as ESHA’s own applications evolve, but shall not be obligated to do so.
6. Copyrights. ESHA is the sole owner of the API and the Database (including all customized and derivative work). All rights not specifically granted in this license are reserved by ESHA. No implied rights are granted.
7. Licensee's Obligations to Protect API. Licensee covenants to use the API only for the purposes set forth in this Agreement and for no other purpose, and shall use commercially reasonable efforts to protect the API from unauthorized use, reproduction, publication or distribution.
8. Lawful Use. Licensee shall at all times use the API in full compliance with all laws and regulations, and shall not use the API to develop any applications that are unlawful or of a nature that ESHA would reasonably find inconsistent with its good business reputation.
9. Indemnification. Licensee shall indemnify, defend, and hold ESHA harmless from all claims, demands, liability, costs and expenses, including, without limitation, attorneys fees, arising from or related to Licensee=s use of the API or Licensee’s development of applications based upon the API, provided ESHA promptly advises Licensee of the existence or threat of any such claim, and reasonably cooperates with Licensee in the defense of any such claim.
10. Term of Agreement / Termination.
a. This Agreement shall become effective upon Licensee’s electronic execution of the Agreement below. Subject to the termination provisions below, this license shall be perpetual.
b. ESHA may terminate this Agreement, and the license granted herein, at any time and for any reason, in its sole discretion, upon providing Licensee with 180 days prior written notice. ESHA may terminate this Agreement, and the license granted herein, immediately in the event Licensee breaches any term or condition of this Agreement and fails to cure such breach within 10 days of receiving written notice thereof. For purposes of this provision, ESHA may provide written notice by sending it to Licensee at the email address set forth in the registration information entered by Licensee in connection with this Agreement. If this Agreement is terminated, Licensee shall immediately cease using the API, and shall certify in writing to ESHA that it has destroyed all copies of the API, in any and all forms, within its possession, custody or control.
11. Proprietary Information. The API, and all other information ESHA discloses to Licensee in connection with the API, shall be considered ESHA’s Proprietary Information, which ESHA discloses only subject to a license agreement. Licensee agrees that it and its employees, agents and representatives shall: (i) keep the ESHA=s Proprietary Information strictly confidential, and shall not disclose such information to any other person or entity without the express written consent of ESHA; (ii) limit internal disclosure of the Proprietary Information solely to its employees, agents and representatives who must be apprised of the Proprietary Information to advance the purposes of this Agreement (and only to the extent that they must be apprised for those purposes); (iii) contractually bind all such persons to honor the confidentiality restrictions imposed upon the Licensee; (iv) use the Proprietary Information solely for the purpose of developing mobile or web applications designed to use all or part of the Database; and (v) upon demand, immediately surrender to ESHA the Proprietary Information and all notes, records, documentation, models, software, databases and other items or materials containing such Proprietary Information. Proprietary Information shall not include: (i) information that is in, or enters into, the public domain without breach of this Agreement through no fault of Licensee; (ii) information Licensee was demonstrably in possession of prior to receiving it from ESHA; (iii) information Licensee can demonstrate was developed by Licensee independently of, and with neither use of nor reference to, ESHA’s Proprietary Information; and (iv) information Licensee receives from a third party without restriction on disclosure and without breach by such third party of a nondisclosure obligation.
12. Warranty of Original Development. ESHA warrants that the API is, and will be, of original development by ESHA.
13. Limitation of Warranties. Other than the warranties expressly set forth in this Agreement, ESHA makes no other warranties, express or implied. ESHA specifically disclaims all implied warranties, including, without limitation, the implied warranties of merchantability and fitness for a particular purpose and any warranties under the Uniform Computer Informational Transactions Act, as may be adopted by any jurisdiction from time to time. Applicable law may not allow the exclusion of implied warranties, so the above disclaimer may not apply to Licensee as it relates to implied warranties.
14. Limitation of Remedies. In no event shall ESHA be liable to Licensee for any indirect, incidental, special, punitive, or consequential damages or lost profits arising out of or related to Licensee’s use of the API, even if ESHA has been advised of the possibility thereof. In particular, ESHA shall not be liable for the loss of information arising from the use of, or inability to use, the API. ESHA=s liability to Licensee, if any, whether arising under contract or based upon a claim of strict liability, negligence or some other tort or statutory claim, shall in no event exceed the total of the payments made to ESHA hereunder during the 12-month period preceding the event upon which liability is predicated. The warranties and remedies set forth above are exclusive and in lieu of all others, oral or written, express or implied. Applicable law may not allow the limitation of remedies, so the above disclaimer may not apply to Licensee as it relates to remedy limitations.
15. Independent Parties. ESHA and Licensee agree that Licensee is an independent developer and that the relationship created by this Agreement is not that of employer and employee, partnership, joint venture or franchise. Neither party shall have the authority to bind or obligate the other party in any manner, and except as otherwise agreed to in writing, neither party shall have any claim to the revenues or profits of the other party related to use of the API or the development of applications based upon the API.
16. Remedies. In the event Licensee breaches or defaults upon any covenant, warranty, term or condition of this Agreement, ESHA may pursue any legal or equitable remedy available under the laws of the State of Oregon or the applicable laws of the United States. The parties agree that in the event of a breach of any of the covenants pertaining to ESHA’s intellectual property or Proprietary Information, such a breach will result in irreparable and continuing damage in an amount which is not readily ascertainable and for which there will be no adequate remedy at law. In the event of any breach of such covenants, ESHA shall be entitled to injunctive relief and such other and further relief, including damages, as may be provided by law.
17. Non-Waiver. The failure or delay of either party to require performance of, or to otherwise enforce, any condition or other provision of this Agreement shall not waive or otherwise limit that party's right to enforce, or pursue remedies for the breach of, any such provision or condition. Any waiver by either party of any particular condition or provision of this Agreement, including this non-waiver provision, shall not constitute a waiver or limitation on that party's right to enforce performance of, or pursue remedies for the breach of, any other condition or provision of this Agreement.
18. Successor Interests. This Agreement and the rights granted hereunder are not assignable or transferable by Licensee without the express written consent of ESHA, which shall not be unreasonably denied or delayed. Subject to this restriction, this Agreement is binding upon, and shall inure to the benefit of, the successors, assigns and bankruptcy estates of each of the parties.
19. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Oregon without regard to, or application of, any conflict of law provisions.
20. Jurisdiction, Venue. The parties agree that any suit, action or arbitration proceeding arising out of or relating to this Agreement shall be brought in Multnomah County, Oregon, and the parties expressly consent to the personal jurisdiction over them of any state or federal court in Multnomah County, Oregon.
21. Attorneys Fees. If either party to this Agreement breaches any term of this Agreement, then the other party shall be entitled to recover all expenses of whatever form or nature, costs and attorneys fees reasonably incurred to enforce the terms of the Agreement, whether or not suit is filed, including such costs or fees as may be awarded in arbitration or by a court at trial or on appeal. In addition, in the event either party to this Agreement becomes a debtor subject to the United States Bankruptcy Code, the non-debtor party shall be entitled to recover any expenses, costs and fees, including attorneys fees, incurred in connection with enforcing its rights against the debtor party, whether those rights arise under this contract or involve matters arising solely under the Bankruptcy Code.
22. Severability. If any court of competent jurisdiction finds any term of this Agreement or of any other document or instrument referred to or contemplated in this Agreement, to be invalid or unenforceable, such determination shall not affect the validity and enforceability of the remainder of the Agreement.
23. Paragraph Headings. All paragraph headings in this Agreement appear for convenience of reference, and shall not affect the meaning or interpretation of the Agreement.
24. Amendments. This Agreement may be amended or modified only by a written instrument executed by the parties which expressly states the intent of the parties to modify or amend this Agreement.
25. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of the Agreement, and supersedes all prior discussions, negotiations, understandings, representations, and agreements, whether oral or written. All terms of this Agreement are contractual and not mere recitals.
