aWhere Developer Community and API Terms of Use

I. Introduction

Welcome to the aWhere Developer Community (ADC)! These Terms of Use cover both the community portal and the APIs, and will evolve with our ecosystem as developers continue to innovate and find creative ways to use our APIs; check back periodically to ensure you have the latest version. Don't do anything prohibited by the Terms and please talk to us if you have questions or think something should be changed. If you are an aWhere customer, your contract (Subscription, Services, or License Agreement) will override the API Terms below wherever there might be a conflict.

To use the ADC, you must first sign up for a Developer Account. The Developer Account must contain accurate and up-to-date information at all times, including your current title, company, and e-mail address.

You agree that you will not post any false, offensive, abusive, unlawful or damaging content. aWhere is not responsible for screening content, but may remove content that violates these Terms of Use and disable the responsible user access.

In these Terms of Use, the expressions "aWhere", "we", "us" and "our" mean [aWhere, Inc.] together with any aWhere group entity that enters into a License Agreement with you.

II. APIs and aWhere Materials

All use of the content, documentation, code, and related materials made available to you on or through the ADC (collectively, the "aWhere Materials") is subject to and must comply with these Terms of Use.

Subject to these Terms of Use, we grant you a limited, non-exclusive, non-assignable, non-transferable license to access the ADC and use the aWhere Materials to develop, test, and support your application ("Application"). Actual use of the APIs in a live production environment is subject to a separate, written license agreement with you governing such usage ("License Agreement").

Your use of the APIs and ADC is subject to certain limitations on access, calls, and use as set forth in the Terms of Use, or as may otherwise be communicated to you by aWhere or addressed in a License Agreement or other separate agreement between you and aWhere. If aWhere believes that you have attempted to exceed or circumvent these limitations, your ability to use the APIs and ADC may be temporarily or permanently blocked. aWhere may monitor your use of the APIs and the ADC to improve the aWhere service and to ensure your compliance with these Terms of Use. You agree to use all application keys, tokens, and accompanying accesses only for the specific API, application, site, or any other access limitation that was authorized for each access. You agree to not attempt to circumvent in any way the access limitations defined by each application key or token, including attempting to access services or data to which you were not specifically authorized. You agree to keep all access information secure and confidential, including but not limited to agreeing not to share, publish or misuse this information.

We may discontinue the availability of some or all of the APIs at any time for any reason. We may also impose limits on certain features and services or restrict your access to some or all of the APIs or our Website. All of our rights in these Terms of Use may be exercised without prior notice or liability to you.

aWhere's APIs are provided for a fee, as agreed to in your customer contract. We offer a limited time and capacity trial period for the purposes of testing the APIs and creating proofs of concept. Your use of trial access is limited to non-production uses and may be subject to limits including the number of fields, total number of API calls, transactions per second, or any other metric aWhere may configure. You may not use trial access for production applications. You may not create multiple trial accounts in order to circumvent these restrictions.

aWhere is committed to partnering with our clients, not competing with them. We may create any number of sample applications, tutorials, demonstrations, proofs of concept, user interface components, or skeleton applications ("sample code") that demonstrate how to use our technology. This sample code may be used by you or any other aWhere customer and aWhere is not responsible for the similarity of apps resulting from commonly used sample code. Each set of sample code is subject to its own license agreement. aWhere does not promise suitability of our sample code for any particular purpose, nor does aWhere guarantee the functionality or workability of any particular piece of sample code. Nothing in these Terms of Use will be construed to restrict aWhere's from creating or selling applications, content, or new sample code.

You are encouraged to post your questions, ideas, examples, or suggestions in the Community Forum. aWhere does not promise any particular Service Level Agreement or guaranteed response time in the forums nor for trial accounts. aWhere does not endorse, support, or guarantee, and is not responsible for, the answers or code samples posted in our community forum by any user who is not part of the aWhere API Team. Anything you post in the Community Forum is open to the public and is not considered private or confidential, nor subject to any Non-Disclosure Agreement. Nothing in these Terms of Use will be construed as restricting or preventing aWhere from creating and fully exploiting any applications, content, and other items, without any obligation to you.

You will not attempt or encourage others to:

A. sell, rent, lease, sublicense, redistribute, or syndicate access to the APIs, ADC or aWhere Materials to any third party without prior written approval from aWhere.

B. remove or alter any proprietary notices or marks on the APIs, ADC or aWhere Materials.

C. use or access the APIs for purposes of monitoring the availability, performance, or functionality of any of aWhere's products and services or for any other benchmarking or competitive purposes.

D. use aWhere marks in any manner without the prior written permission of aWhere or in a manner that creates a sense of endorsement, sponsorship, or false association with aWhere. You may not use aWhere marks as part of the name of your company or Service, or in any product, service, name field or logos created by you. All use of aWhere marks, and all goodwill arising out of such use, will inure to aWhere's benefit.

E. try to exceed or circumvent your limitations on calls and use. This includes creating multiple applications for identical, or largely similar, usage (e.g. having one application per customer). If we believe that you have exceeded or circumvented our limitations, or if you have tried to, we may temporarily suspend or permanently block your access to the APIs, disable your Developer Account, or both.

F. interfere with or disrupt aWhere services or servers or networks connected to aWhere services, or disobey any requirements, procedures, policies or regulations of networks connected to aWhere services.

III. Confidentiality

You may be given access to certain non-public information, software, and specifications ("Confidential Information"), which is confidential and proprietary to aWhere (all aWhere Materials are hereby deemed to be Confidential Information). You may use this Confidential Information only as necessary in exercising your rights granted in these Terms of Use. You may not disclose any of this Confidential Information to any third party without aWhere's prior written consent. You agree that you will protect this 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.

IV. Ownership and Feedback

You expressly acknowledge that aWhere retains all worldwide right, title and interest in and to the aWhere Materials, including all intellectual property rights therein, except where such materials are explicitly licensed to the public domain or public license. You also acknowledge that as between you and aWhere, aWhere owns all right, title and interest in and to the APIs, aWhere Marks, and the aWhere service (and any derivative works or enhancements thereof), including but not limited to all intellectual property rights therein. API designs are copyrighted by aWhere, Inc., all rights are reserved and designs may not be duplicated without prior permission. You agree not to do anything inconsistent with such ownership. Any rights not expressly granted herein are withheld. You agree that you will not challenge aWhere's ownership of, the validity of any license to use, or otherwise copy or exploit the aWhere Marks during or after the termination of this agreement except as specifically authorized herein. If you acquire any rights in the aWhere Marks or any confusingly similar marks, by operation of law or otherwise, you will, at no expense to aWhere, immediately assign such rights to aWhere. "aWhere Marks" means any registered or unregistered trademarks or service marks belonging to aWhere that you are expressly permitted to use under these Terms of Use or any License Agreement.

You have no obligation to give us any suggestions, comments or other feedback ("Feedback") relating to the aWhere Materials, unless specified in an alternate agreement with aWhere. However, we may use and include any Feedback that you voluntarily provide to improve the aWhere Materials and/or any other of our products, services, or technologies without any license, attribution, or payment to you. Accordingly, if you give Feedback, you agree that we may freely use, reproduce, license, and distribute such Feedback. You also agree not to provide Feedback that you know is subject to any intellectual property claim by a third party or any license terms that would require products or services derived from that Feedback to be licensed to or from, or shared with, any third party.

V. Updates

aWhere may update or modify the APIs, Terms of Use, and any other applicable terms and conditions, from time to time at its sole discretion by posting the changes on this site or by otherwise notifying you (such notice may be via email). While we do our best to provide adequate notification via this website, it is your responsible to periodically check this website for notifications of pending changes. Additionally, we may make changes to the APIs, including any that might negatively affect your application, at any time at our sole discretion. If any change is unacceptable to you, your only recourse is to terminate this agreement by ceasing all use of the ADC and aWhere Materials, subject to the terms of any other contract you have with aWhere. Your continued access or use of the ADC or any aWhere Materials will constitute binding acceptance of the change.

VI. Termination

The term of these Terms of Use will commence on the date upon which you agree to these Terms of Use and will continue until: you close your Developer Account or we terminate your access to the ADC or terminate this agreement, or both. aWhere may immediately suspend your access to the ADC or any aWhere Materials (or if necessary, terminate this agreement with you) at any time, and without notice to you if you breach any term or condition in the Terms of Use or otherwise engage in activities that aWhere reasonably determines are likely to cause harm or liability to aWhere. aWhere will not be liable for any costs, expenses, or damages as a result of its termination of this agreement. Upon termination of this agreement, you will promptly cease accessing and using the ADC and aWhere Materials and will delete all aWhere Materials and any information derived therefrom and all copies and portions thereof, in all forms and types of media.

VII. Representations and Warranties; Disclaimer

You represent and warrant that:

A. you have the necessary power and authority to enter into this agreement, and that the performance of your obligations will not constitute a breach or otherwise violate any other agreement or the rights of any third party arising therefrom;

B. you will maintain throughout the term of this agreement all rights and licenses that are required with respect to your Service; and

C. your Service and its use, distribution, sale and license, including the use of any license hereunder, does and will continue to comply with all applicable foreign, federal, state and local laws and regulations, as well as these Terms of Use.

THE AWHERE MATERIALS, APIS, AND ANY OTHER AWHERE PRODUCTS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND ON AN "AS-AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND. AWHERE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. AWHERE DOES NOT WARRANT THAT THE AWHERE MATERIALS AND APIS AND ANY OTHER AWHERE PRODUCTS AND SERVICES PROVIDED HEREUNDER WILL MEET ALL OF YOUR REQUIREMENTS OR THAT USE OF SUCH AWHERE MATERIALS AND APIS BE ERROR-FREE UNINTERRUPTED, VIRUS-FREE, OR SECURE. SOME OF THE AWHERE MATERIALS ARE EXPERIMENTAL AND HAVE NOT BEEN TESTED IN ANY MANNER. WE DO NOT REPRESENT, WARRANT OR MAKE ANY CONDITION THAT THE AWHERE MATERIALS ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. YOUR USE OF THE AWHERE MATERIALS IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM USE OF THE aWhere MATERIALS INCLUDING FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM OUR WEBSITE OR OUR SERVICES WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THESE TERMS.

VIII. Limitation of Liability

IN NO EVENT WILL AWHERE BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ANY CASE, AWHERE'S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR AS SUCH DETERMINED AND GOVERNED BY YOUR LICENSE AGREEMENT WITH AWHERE. YOUR LICENSE AGREEMENT (CONTRACT) WITH AWHERE GOVERNS OUR LIABILITY TO YOU. USERS WITHOUT A PIAD LICENSE AGREEMENT ARE SUBJECT TO THESE TERMS.

YOU AGREE TO THE FOLLOWING LIMITATION OF LIABILITY TO THE EXTENT PERMITTED BY APPLICABLE LAW: YOU EXPRESSLY UNDERSTAND AND AGREE THAT AWHERE WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF AWHERE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR YOUR USE OF THE APIS, AWHERE MATERIALS, OR OTHER AWHERE PRODUCTS AND SERVICES. UNDER NO CIRCUMSTANCES WILL AWHERE'S AGGREGATE, CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, UNDER ANY THEORY OF LIABILITY, EXCEED U.S. ONE HUNDRED DOLLARS (U.S. $100). THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS OF USE IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

IX. Indemnification

You will indemnify, defend, and hold aWhere, its subsidiaries, affiliates, officers, and employees, harmless from any and all claims, damages, losses, liabilities, actions, judgments, costs, and expenses (including reasonable attorneys' fees) brought by a third party arising out of or in connection with: (a) any act or omission by you, in connection with your use of the aWhere Materials, the APIs, or the aWhere Marks; (b) your use of the aWhere Materials, the APIs, or the aWhere Marks other than as expressly allowed by this agreement; (c) your breach or alleged breach of any of the terms, restrictions, obligations or representations under this agreement; or (d) your Application(s). You will assume control of the defense and settlement of any claim subject to indemnification by you. aWhere may, however, at any time elect to take over control of the defense and settlement of any such claim, at your cost and expense (including reasonable attorneys' fees). In any event, you will not settle any such claim without aWhere's prior written consent.

X. Miscellaneous

These Terms of Use constitute the entire agreement among the parties with respect to the subject matter, and is superseded only by a paid license agreement (contract) for services with aWhere, wherever there is a conflict. Any modification to the Terms of Use by you must be in a writing signed by both you and aWhere. You may not assign any of the rights or obligations granted hereunder, voluntarily or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets) except with the express written consent of aWhere, and any attempted assignment in violation of this paragraph is void. Nothing in these Terms of Use will be construed as creating a partnership or joint venture of any kind between the parties and neither party will have the authority or power to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose. These Terms of Use will be governed by and construed in accordance with the laws of the State of Colorado as such laws apply to contracts between Colorado residents performed entirely within Colorado. Any action or proceeding arising out of or relating to these Terms or your use of the APIs must be brought in a federal court in Colorado and each party irrevocably submits to the jurisdiction and venue of any such court. In the event of litigation between the parties arising out of or related to these Terms of Use or your use of the ADC, the prevailing party will be entitled to recover its attorneys' fees and costs incurred. No waiver by aWhere of any covenant or right under this agreement will be effective unless memorialized in a writing duly authorized by aWhere. If any provision of these Terms of Use is found by a court of competent jurisdiction to be invalid, the parties 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 of Use remain in full force and effect. The section headings in these Terms of Use are for convenience only and have no legal or contractual effect. You acknowledge that your breach of these Terms of Use may cause irreparable harm to aWhere, the extent of which would be difficult to ascertain. Accordingly, you agree that, in addition to any other remedies to which aWhere may be legally entitled, aWhere will have the right to seek immediate injunctive relief in the event of a breach of these Terms of Use by you or any of your officers, employees, consultants, or other agents. You must comply with all applicable laws, including, the Digital Millennium Copyright Act and applicable export laws, and these Terms of Use, which may be amended from time to time with or without advance notice, in order to use the APIs.

XI. Privacy Policy

The Privacy Policy for this website is incorporated into these terms.