By accessing or otherwise using the ESHA Property, you accept and agree to be bound by the following terms and conditions (“Agreement” or “Terms”). If you are entering this Agreement solely on behalf of a company and/or other legal entity or party, you represent and warrant that you have the legal authority to bind such company, legal entity and party to this Agreement, in which case "you" shall mean such company, legal entity and party. This Agreement is a legal agreement between you and ESHA Research, Inc. (“ESHA”, “we”, or “us”). The ESHA entity or entities party to this Agreement shall be determined by ESHA in its sole discretion.
Your Agreement with us includes (1) this Agreement, the most current version of which can be found at http://developer.esha.com and (2) all other documents, policies and terms, found at http://developer.esha.com (“Additional Terms”). The Additional Terms are hereby incorporated by reference into this Agreement. In the event of any conflict between the content in this Agreement and Additional Terms, this Agreement shall control with respect to your use of the ESHA Property (defined below).
ESHA reserves the right to change this Agreement in our sole and absolute discretion and with or without notice to you. The most current version of the Terms will supersede all previous versions. By using the ESHA Property subsequent to publication of modifications to the Terms, you are automatically bound by and subject to the full language of the most current Terms, as revised. If you disagree with anything in these Terms (or changes to the Terms), your only recourse is to discontinue your use of the ESHA Property.
1. License Grant to you and Reservation of Rights
1.1 License Grant. Subject to your compliance with the terms and conditions in this Agreement, and solely for the duration of this Agreement, ESHA grants you a limited, non-exclusive, revocable, non-sublicensable and non-transferable license to evaluate the ESHA Property solely internally for non-commercial evaluation purposes in connection with your internal testing and evaluation of ESHA Property. All other uses of the ESHA Property are prohibited. No end users or third parties are permitted to use or access ESHA Property and no ESHA Property may be used in conjunction with a website, mobile application or electronic application of any kind or distributed in any way to be used without ESHA’s prior written authorization.
1.2 Reservation of Rights. Except as expressly set forth in this Agreement, no right or license, express or implied, is granted to you or any third party by estoppel, implication, exhaustion or other doctrine of law, equity or otherwise with respect to any product, content, technology, intellectual property or service of ESHA. In addition, nothing in this Agreement shall be deemed to grant to you or any third party the right or license to use ESHA Property on any platform or device, in any place or in any manner which is not expressly authorized hereunder. For clarity, no right or license, express or implied, is granted to you or any third party by estoppel, implication, exhaustion or other doctrine of law, equity or otherwise with respect to any patent or patent application of ESHA or its affiliates or licensors. Nothing in this Agreement shall be deemed to be a waiver or release of your past, present or future obligations to acquire such rights and/or licenses from ESHA.
2. ESHA Property. As between you and ESHA, ESHA retains all right, title and interest, including without limitation all intellectual property rights, in and to, (i) the APIs and any and all elements and components thereof, including, without limitation, content, technology, software, code and any services provided via such APIs (e.g. search, recommendation, analyses, etc.); (ii) http://developer.esha.com and all documents, text, materials, code, software, technology, products, services, policies, terms or other items found on or accessed via such site (iii) the Content available through the APIs, and (iv) any feedback (e.g. suggested improvements), about any ESHA property, technology, products or services in existence or in development (“Feedback”), in each case, including, without limitation, any and all intellectual property and proprietary rights and any derivatives, revisions, enhancements, modifications or condensations thereof (collectively the “ESHA Property”). If you provide ESHA with any Feedback, you assign all right, title and interest in and to such Feedback to ESHA, and acknowledge that ESHA will be entitled to use, including without limitation, implement and exploit, any such Feedback in any manner without any restriction or obligation. You further acknowledge and agree that ESHA is not obligated to act on such Feedback. “Content” includes, but is not limited to, nutrient data, searches, analyses and recommendations, information about the foregoing, and/or any other data or information ESHA chooses to include in its ESHA API product, in each case, that ESHA may provide or otherwise make available from time to time in its sole discretion via the APIs or pursuant to this Agreement. Content shall not include and you will not have any rights to use in any manner any data samples even if, as a technical matter, ESHA provides data samples to you via the APIs, and you shall pay to ESHA any fees, penalties, charges or expenses assessed against you by ESHA if you use any data samples. The “APIs” consist of programmatic web application programming interfaces, code and associated tools and documentation which will display certain Content as released from ESHA from time to time, subject to the limitations and conditions described in this Agreement.
3. Developer Accounts and Usage Limitations
3.1 Developer Accounts and Keys. In order to obtain access to the APIs, you must create a developer account. You may be limited by the account creation process to one account per email address. You will be issued one or more unique security keys, secrets, tokens, passwords and/or other credentials (collectively, “Keys”) for accessing the APIs and managing your account. You may only access your account with the Key issued to you by ESHA. Access may not always be available. You may not sell, transfer, sublicense or otherwise disclose your Keys to any other party or use them with any third party application(s), technology, website(s) or property. You are responsible for maintaining the secrecy and security of your Keys. You are fully responsible for all activities that occur using your Keys, regardless of whether such activities are undertaken by you or a third party. You should notify us immediately if you believe your Keys have been compromised or misappropriated in any way, including, without limitation, by a third party.
3.2 Usage Limitations. . You may not store or cache any information provided by the API, during evaluation, without the express permission of ESHA. Currently, you are allowed to make up to 2,000 API calls per day in the aggregate, as calculated by ESHA, during the term of this Agreement, with a maximum of two API calls per second in the aggregate, as calculated by ESHA, for each Key issued to you. ESHA may change such usage limits at any time without notice. In addition to its other rights under this Agreement, ESHA may utilize technical measures to prevent overusage and/or stop usage of the ESHA Property at any time.
4. Term and Termination
4.1 Term. The term of this Agreement shall start on the date you first access or use ESHA Property and shall continue in force thereafter, unless modified or terminated as provided herein.
4.2 ESHA Termination and Modification of ESHA Property. ESHA may at any time and in its sole discretion change, limit, suspend, disable, terminate or discontinue all or any aspect of the ESHA Property, including, without limitation, its general availability and your use of and access to all or any portion of the ESHA Property. Furthermore, ESHA may at any time and in its sole discretion change, limit, suspend, disable, terminate or discontinue all or any portion of this Agreement. Notwithstanding anything to the contrary herein, if your entering into this Agreement with ESHA would cause any liability to ESHA and/or jeopardize ESHA’s compliance with any law, rule, regulation, executive order, treaty or other obligation, then this Agreement is void and shall never enter into effect, regardless of whether or not ESHA takes any action related to your request to enter into this Agreement, including but not limited to issuing you a Key. This Agreement shall immediately and automatically terminate if you breach this Agreement in any manner or if ESHA disables your Key or otherwise terminates your access to your Key or developer account. You agree and acknowledge that ESHA shall have no liability for any change, limitation, suspension, disablement, termination or discontinuance of ESHA Property, your Key(s) and/or this Agreement or any change in functionality of your applications, property, business or systems arising therefrom.
4.3 Your Termination. You may terminate this Agreement for any reason or no reason at all, at your convenience, by (i) closing your developer account, and at such time your use of the ESHA Property shall cease or (ii) ceasing use of the ESHA Property.
4.4 Effect of Termination.
a) If ESHA modifies, terminates your access to and/or discontinues providing any or all of the ESHA Property at any time, (i) the rights granted to you herein for earlier versions of, discontinued or terminated ESHA Property shall automatically terminate, (ii) you shall immediately cease using such earlier versions of or discontinued ESHA Property as well as ESHA Property for which your access has been terminated and (iii) you shall also immediately comply with the Purge Obligation with respect to such ESHA Property. “Purge Obligation” shall mean the obligation by you to (1) destroy all copies of ESHA Property, in any form, and purge all copies of ESHA Property from your computer systems, software, technology, documents or other computer or other storage device or media under your ownership, access or control or in which any materials have been placed and (2) destroy any and all records, notes, analyses, memoranda, drawings and other written or tangible materials, documents or other media containing ESHA Property.
b) Upon the termination of this Agreement for any reason the rights granted to you herein, including all licenses to the ESHA Property shall terminate. Upon such termination, you shall also immediately cease using all ESHA Property and comply with the Purge Obligation. An officer of your company shall certify in writing to ESHA regarding such complete purge, cessation and destruction and to the effect that, to the best of your knowledge, the ESHA Property is not stored, through your acts or omissions, accidental or otherwise, on any other storage device or medium not currently under your control. Your payment obligations shall remain in effect until such certificate is received by ESHA.
6. Confidential Information. The term “ESHA Confidential Information” means any information of or relating to ESHA that becomes known to you through disclosure, observation or otherwise, and that is designated as confidential by ESHA, that could reasonably be construed to be confidential or that is not generally known or readily ascertainable to the public, including, without limitation, nonpublic information regarding the ESHA Property and ESHA's products, services, programs, features, data, techniques, technology, code, ideas, inventions, research, testing, methods, procedures, know-how, trade secrets, business and financial information and other activities. All ESHA Confidential Information remains the property of ESHA, and no license or other right in any ESHA Confidential Information is granted hereby. You will not disclose any ESHA Confidential Information to any third party, and will take all reasonable precautions to prevent its unauthorized dissemination, both during and after the term of this Agreement. If you are a corporate entity, you will limit your internal distribution of ESHA Confidential Information to your employees and agents who have a need to know, and will take steps to ensure that dissemination is so limited. You will not use any ESHA Confidential Information for the benefit of anyone other than ESHA. Upon ESHA’s written request, you will destroy or return to ESHA all ESHA Confidential Information in your custody or control. In addition to the terms of this provision, you and ESHA will continue to be subject to any non-disclosure agreement that you and ESHA have entered into separately. This provision will survive any expiration or termination of this Agreement.
7. Indemnity. You agree to hold harmless, defend and indemnify ESHA, and its subsidiaries, affiliates and licensors, and their respective officers, agents, and employees, advertisers or partners, from and against any claim arising from or in any way related to your use of any ESHA Property, violation of this Agreement, violation of applicable laws, rules and regulations, including, without limitation, privacy laws, or any other actions or claims connected with or related to your use of ESHA services, including, without limitation, any liability of any kind and nature including, without limitation, any expenses, claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees.
8. Disclaimer of Warranties; Limitation of Liability YOU EXPRESSLY UNDERSTAND AND AGREE TO THE FOLLOWING DISCLAIMERS AND LIMITATIONS OF LIABILITY WHICH SHALL APPLY TO YOU AND THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW:
YOUR USE OF THE ESHA PROPERTY, ESHA SERVICES AND/OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE ESHA PROPERTY OR ANY ESHA SERVICES IS AT YOUR SOLE RISK. THE ESHA PROPERTY AND ANY ESHA SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ESHA EXPRESSLY DISCLAIMS ALL INDEMNITIES, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ESHA SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
YOU AGREE TO THE FOLLOWING LIMITATION OF LIABILITY WHICH SHALL APPLY TO YOU AND THIS AGREEMENT TO THE EXTENT PERMITTED BY APPLICABLE LAW: YOU EXPRESSLY UNDERSTAND AND AGREE THAT ESHA SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ESHA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO CASE SHALL THE AGGREGATE LIABILITY OF ESHA OR ITS AFFILIATES OR LICENSORS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR ESHA PROPERTY EXCEED US$10.00.
9. Release and Waiver. To the maximum extent permitted by applicable law, you hereby release and waive all claims against rights holders in the ESHA Property, ESHA and its subsidiaries, affiliates, and the respective officers, agents, employees, licensors, advertisers or partners of the foregoing from any and all liability of any kind and nature including, without limitation, any expenses, claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, arising from or in any way related to your use of the ESHA Property. If you are a California resident, you waive your rights under California Civil Code Section 1542 which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
10. General Information
10.1 Publicity. Neither party shall issue any press release or make any public disclosure regarding this Agreement. Notwithstanding anything in this Agreement to the contrary, ESHA may at any time “line list” you as an authorized ESHA licensee or reference you as a beta user of ESHA Property to the extent required by law, rules, regulations or the terms of ESHA’s agreements with rights holders in the ESHA Property.
10.2 Entire Agreement. These Terms, including the other documents explicitly incorporated by reference, constitute the entire agreement between you and ESHA and govern your use of the ESHA Property, superseding any prior agreements between you and ESHA.
10.3 Choice of Law and Forum. These Terms and the relationship between you and ESHA shall be governed by the laws of the State of Oregon without regard to its conflict of law provisions. You and ESHA agree to submit to the personal and exclusive jurisdiction of the courts located within Multnomah County, Oregon.
10.4 Assignment. You may not assign or transfer (e.g. through a transfer of equity, asset or other ownership interest) these Terms in whole or in part (including, without limitation, your rights and/or obligations hereunder). ESHA may, without notice to you, assign or transfer these Terms (including, without limitation, its rights and/or obligations hereunder) in its sole discretion.
10.5 Notices. Any notices required to be delivered by ESHA or which ESHA otherwise opts to send to you, may be sent via email or communicated in telephone calls to you, posting of a Take Down Notice or other notice on this site or the Developer Portal.
10.6 Survival. In the event of any termination or expiration of these Terms for any reason, Sections 1.2, 2, 4, and 6 - 10 shall survive termination. Notwithstanding the foregoing, other provisions may survive expiration or termination of this Agreement if their survival is reasonably necessary to effectuate the intent of the parties under this Agreement.
10.7 Waiver. The failure of ESHA to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
10.8 Headings. The section headings in these Terms are for convenience only and have no legal or contractual effect.
10.9 Attorneys Fees. The prevailing party shall be entitled to reasonable attorney’s fees, costs and related expenses arising out of any action to enforce this Agreement.
10.10 Remedies. You acknowledge that your breach of these Terms may cause irreparable harm to ESHA and/or its licensors, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which ESHA may be legally entitled, ESHA shall have the right to seek immediate injunctive relief in the event of a breach of these Terms by you or any of your officers, employees, consultants or other agents.
10.11 Severability of Terms. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.
10.12 Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action you have arising in connection with Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
10.13 Third Party Beneficiaries. Nothing in these Terms should be construed to confer any rights to third party beneficiaries; provided that rights holders in the Content shall each be third party beneficiaries of this Agreement to enforce against you all rights of ESHA hereunder as if each was a party hereto.
10.14 Export Controls. You shall, in connection with your use of the ESHA Property, comply with all applicable export and re-export control laws, rules and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control in connection with your use of the ESHA Property.
10.15 Interpretation. You agree that ESHA has sole discretion in determining the interpretation of the meaning of these Terms, including determining your compliance with these Terms.
© 2013 ESHA Research January 22, 2013