Awair 3rd Party Commercial Services Terms of Service
Last Updated: May 1, 2017
Bitfinder, Inc., d/b/a Awair, Inc. ("Awair") provides a collection of application programming interfaces (APIs), referred to collectively as "Services" that provide communication and/or interoperability with Awair devices, systems and user accounts, as well as third party devices, systems and accounts that are supported by the Awair platform.
You wish to develop software which interacts with the Awair Services, this software referred to here as the "Implementation". Awair wishes to make these Services available to you for use in your Implementation, subject to your compliance with the terms and conditions set forth below (the "Agreement").
This Agreement applies to both commercial and non-commercial uses of the Services. There may be charge a fee for commercial use of the Service. By accessing, or using these Services, you are agreeing to be bound by the Agreement. If you do not wish to be bound by the Agreement, you may not access or otherwise use the Services.
1) Your Relationship with Awair
a) Your use of any of the Services is subject to the terms of a legal agreement between you and Awair, Inc., whose principle place of business is at 40 Boardman Place, San Francisco, California ("Awair").
c) Nothing contained in this Agreement shall be deemed to constitute either party as partner, joint venture or employee of the other party for any purpose.
d) Nothing contained in this Agreement shall be deemed to constitute a non-compete agreement. Awair may choose to independently develop products and services which compete with your Implementation.
e) You represent that you have full power, capacity and authority to accept this Agreement. If you are accepting on behalf of your employer or another entity, you represent that you have full legal authority to bind your employer or such entity to this Agreement. If you do not have the legal authority to bind, please ensure that an authorized person from your entity consents to and accepts these Agreements.
2) Term of the Agreement
a) This Agreement begins upon you signing and returning this Agreement to Awair (the Effective Date) and lasts for a term of one year.
b) This Agreement may be renewed annually.
c) Continued usage of the Services will be deemed a renewal of this Agreement. You may terminate your participation in the Agreement by ceasing use of the Services, and by removing the Awair API code from your Implementation. Awair, at its discretion, may cancel this Agreement at any time upon notice to you. If there is a material breach of the Agreement, then this notice period is waived, and the Agreement may be cancelled immediately.
d) The restrictions and obligations in sections 3, 4, 6, 7, 10, 11 and 12 survive the termination or cancellation of this Agreement, and shall continue to bind you, your successions and heirs.
3) Privacy and Personal Information
c) Security. You will use all reasonable efforts to protect Customer Data (as defined below) collected by you, including without limitation any personally identifiable information (PII), from unauthorized access or use. In the event your systems or infrastructure that are used for storage, processing or hosting Customer Data are breached or compromised, or if Customer Data is inadvertently exposed to non-authorized third parties, you shall inform Awair at [firstname.lastname@example.org] promptly of such a breach or exposure and provide all available information, including root cause analysis, remediation steps and compensating controls to ensure such a breach does not occur in the future. You are responsible for providing customer notification under the state breach notification statutes and any other applicable privacy laws and you will bear the costs incurred by you and Awair resulting from your breach or exposure. “Customer Data” means any and all technical information, PII, device usage information, or other information derived from access to or use of any of the Awair API and Awair Services, including but not limited to data acquired from or through the Awair API that relates to any end users of any Awair products and services or pertains to use of any Awair products and services by such end users. Before collecting any Customer Data or other information from end users of your Client, you must provide adequate notice of what Customer Data and other information you collect and how it will be used and/or shared and obtain any necessary consents. You will comply with all privacy laws and regulations (including those applying to PII) in connection with your access and use of the Services.
d) Data Use. You will not permit use of any Customer Data or disclose any Customer Data to any third party except to those third party service for your own benefit and under reasonable confidentiality terms. You will not use or disclose any information derived directly or indirectly from the Customer Data for any purpose other than as set forth above.
4) Awair Proprietary Rights
a) Awair shall own and retain all right, title and interest in and to the Intellectual Property Rights in the Services, subject only to the limited license expressly set forth in the section entitled "Permitted Uses". You do not acquire any other rights, express or implied, in the Services. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO AWAIR.
b) Awair claims no ownership over your software or data, as provided in the Implementation, and you retain copyright and any other rights you already hold. By using the Service, you grant Awair a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, perform, display and distribute your data through the Service for the sole purpose of Awair providing the Service to your Implementation.
c) Promotional and Marketing Use. In the course of promoting, marketing, or demonstrating the Awair API and Nest Products, Awair may produce, distribute and use depictions, screenshots, video, or other content from your products, and may use your company or product name and logos. You hereby grant Nest all necessary rights for these purposes.
5) Permitted Uses
a) Limited License. Subject to the terms and conditions of this Agreement, Awair grants to you a non-exclusive, non-transferable license (without the right to sublicense) to use the Services for commercial and non-commercial purposes within your Implementation. Also subject to the terms and conditions of this Agreement, Awair further grants to you a non-exclusive, non-transferable license (without the right to sublicense) to resell the Services as an integrated component of your Implementation.
b) Identification. In your Implementation, you shall identify to your users Services which come from Awair. Under no circumstance shall you identify Services as coming from any source other than Awair. For the purposes of this Identification, you are granted a limited, non-exclusive license to use Awair's trade-marks for the purposes of this Identification, provided that all titles, trade-marks, copyright and restricted rights notices are reproduced on such copies.
c) Limits on your Use of the Service. You acknowledge and agree that Awair may limit your usage of the Services. These limitations are specified in Appendix A. Such limits may be set by Awair at any time, at Awair's discretion. You further acknowledge and agree that Awair may adjust the rate at which such queries are received and processed by the Service in order to maintain the integrity of the Service. Such adjustments may be set by Awair at any time, at Awair's discretion. If you want your Implementation to use the Services outside these usage limits or usage policies, please contact Awair for information on additional licensing options.
i) You shall not copy or use the Services, or any related documentation except as expressly permitted in this Agreement.
ii) You will not, and will not permit any third party to, retain, sublicense, rent, copy, modify, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any portion of the Services.
iii) You and your Implementation will not use the Services to harm Awair, such harm including, but not being limited to, disrupting Awair business and customers, overloading Awair's network or conducting Denial of Services attacks, finding or exploiting vulnerabilities in Awair's security, contacting Awair customers who do not have an explicit and preexisting relationship with you.
Violating any of these restrictions shall be considered a material breach of the Agreement.
e) Third-Party Software. The terms and conditions of this Agreement shall not apply to any Third-Party Software accompanying the Services. Any such Third-Party Software is provided under the terms of the license agreement or copyright notice accompanying such Third-Party Software.
f) Open Source Software. The terms and conditions of this Agreement shall not apply to any Open Source Software accompanying the Services. Any such Open Source Software is provided under the terms of the open source license agreement or copyright notice accompanying such Open Source Software.
g) Monitoring. Awair may monitor the use of the Services to ensure quality, improve Awair products and services, or verify your compliance with this Agreement. You will not interfere with such monitoring.
6) Changes to Service or Termination of Service
a) Awair may make provide periodic Upgrades to the Services. Awair will provide you with prompt notice if we intend to depreciate an existing API or otherwise make backwards incompatible changes to the Services in an Upgrade ("Depreciation Policy"). Your continued access and use of the Services shall be deemed your conclusive acceptance of the modified Services. If a modification is unacceptable to you, you must terminate use of the Services. In no way shall Awair be held liable for any costs or damages caused by the changes to the Services beyond refunding any unused pre-paid purchases of queries that have been requested by you.
7) Confidential Information
a) Services are proprietary to, and include confidential information belonging to Awair. For greater certainty, confidential information includes all trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, hardware, schematics, and software source documents relating to the Services, and other information provided by Awair, whether disclosed orally, in writing, or by examination or inspection, other than information which you can demonstrate (i) was already known to you, other than under an obligation of confidentiality, at the time of disclosure; (ii) was generally available in the public domain at the time of disclosure to you; (iii) became generally available in the public domain after disclosure other than through any act or omission of you; (iv) was subsequently lawfully disclosed to you by a third party without any obligation of confidentiality; or (v) was independently developed by you without use of or reference to any information or materials disclosed by Awair. Confidential Information shall include without limitation the APIs, documentation relating to the APIs, Performance Data, and any Updates. For greater certainty, any Service (including any API) which is published under an open source license will no longer be considered confidential information, without affecting the confidentiality of the other non-published Awair Services.
You agree to not
i) disclose to any party not involved in the Implementation any information about the Service's performance, content, specifications or its code;
ii) copy any portion of Services code, appearance or documentation, except to the extent necessary to perform integration with Awair devices and services; or
iii) reverse engineer, decompile or disassemble the Services or any portion of it.
c) Without limiting the foregoing, you shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care, to prevent the disclosure of Confidential Information
d) Information regarded as confidential will be held in confidence by the you in perpetuity, or until Awair or a competent Court of Law no longer considers such information confidential.
e) You agree that monetary damages would not be a sufficient remedy for any breach of this Agreement, and that any court having jurisdiction may enter a preliminary and/or permanent restraining order, injunction or order for specific performance in the event of an actual or threatened breach of any of the provisions of this Agreement, in addition to any other remedy available to Awair.
a) The Terms may be assigned by Awair and will inure to the benefit of Awair, its successors, and assigns.
b) You shall not assign or otherwise transfer any rights or obligations under this Agreement, without the written authorization by Awair, such authorization not to be unreasonably withheld.
9) Changes to the Agreement
a) Awair reserves the right to make changes to the Agreement from time to time. When these changes are made, Awair will make a new copy of the Agreement available at [include hyperlink to terms of service](or such successor URLs that Awair may designate from time to time). You are therefore responsible for reviewing the Agreement and additional terms sent to you, or notices posted on the Awair website. Your continued access and use of the Services shall be deemed your conclusive acceptance of the modified agreement. If a modification is unacceptable to you, you may terminate this Agreement by ceasing use of the Services. In no way shall Awair be held liable for any costs or damages caused by the changes or termination to the Agreement.
b) If there is any contradiction between the Agreement and other API-related documents (including but not limited to the API documentation), then this Agreement will take precedence.
10) Exclusion of Warranties
a) The accuracy, reliability and fitness of purpose of the Services are not guaranteed. You should monitor your use of the Services on a regular basis to ensure their proper performance. You waive any and all claims that they may have against Awair arising out of the performance or nonperformance of the Services.
b) SERVICES ARE PROVIDED AS IS, AND AWAIR DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO IT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11) Limitations of Liabilities
a) THESE SERVICES AND RELATED INFORMATION ARE PROVIDED BY Awair Inc. ON AN "AS IS" AND "AS AVAILABLE" BASIS. AWAIR MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND, OR AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED IN THIS SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THESE SERVICES IS AT YOUR SOLE RISK.
b) TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, AWAIR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AWAIR WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES.
c) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
a) You agree to indemnify, defend and hold harmless Awair Inc., each of its officers, directors, owners, partners, employees, agents, licensors, suppliers and any third party information provider to the website from and against all losses, expenses, damages and costs, including legal fees, resulting from any violation of these Agreement (including negligent or wrongful conduct) by you or your use and access of the Awair Services.
b) You agree to agree to indemnify, defend and hold harmless Awair Inc., each of its officers, directors, owners, partners, employees, agents, licensors, suppliers and any third party information provider to the website from and against all losses, expenses, damages and costs, including legal fees, resulting from any claim by a 3rd party that your Implementation violates their intellectual property rights (including patent, copyright or trademark infringement, or violation of trade-secrets by you).
c) You will cooperate as fully as reasonably required in the defense of any claim. Awair reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You acknowledge that damages for improper use of the Services may be irreparable; therefore, Awair is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies.
13) General Legal Terms
a) Severability: If a court finds any provision of this Agreement invalid or unenforceable, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.
b) Integration: This Agreement expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This Agreement may not be amended except in a writing signed by both parties.
c) Waiver: The failure to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
d) Attorney Fees and Expenses: In a dispute arising out of or related to this Agreement, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.
e) Governing Law: This Agreement shall be governed in accordance with the laws of the State of California.
f) Jurisdiction: The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in San Francisco, California in any action arising out of or relating to this Agreement. The parties waive any other venue to which either party might be entitled by domicile or otherwise.
g) International Use. Given the global nature of the Internet, you agree to comply with all local rules including, without limitation, rules about the Internet, data, e-mail, privacy, copyright, and trademark infringement. Additionally, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
h) Communication. When you send e-mails to us, you are communicating with us electronically, and thereby you are consenting to receive communications from us electronically or by other means available. We will communicate with you electronically, by telephone or by facsimile. It is further understood that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing
i) Language. It is the express wish of the parties that this Agreement and any related documents be drawn up in the English language.
j) Contact Information. Please send notices or requests by care of e-mail to: legal@Awair.com
(or) by our Mailing Address:
40 Boardman Place, 2F
San Francisco, CA
Appendix A: Service Level and Usage Limits
1. If your Implementation generates a high volume of queries, Awair reserves the right to set usage limits, as are described below. Awair also reserves the right to set other usage policies for the Services from time to time. If you want to engage in use outside these usage limits or usage policies, please contact Awair for information on licensing options to address your needs.
2. Usage Limits.
a. Implementations using the Services may at no cost generate up to 7,000 queries ("usage limit"), per day starting on the date you register for developer access ("Registration Date"). Every day, your Implementation receives a new allotment of 7,000 queries. Unused free queries are not carried over from day to day.
b. If your Implementation exceeds the usage limits, Awair reserves the right to restrict access to the Services by your Implementation, including but not limited to, throttling access to the server or denying access to the Services by your Implementation. In no way will Awair be liable for any losses or damages caused by the restriction of access to the Services by your Implementation caused by excess queries.
c. To avoid restriction of access to the Services by your Implementation, you can respond in one of the following ways:
i. Modify your Implementation to reduce the number of queries per day to be below the usage limit.
ii. Purchase an annual subscription for enhanced Usage Limits, which provides additional queries from Awair. These additional queries may be governed by different terms than the free queries provided in this Agreement.
d. Every query made by your Implementation is associated with a user account. Queries that are made by a user account that is identified as your Developer account(s) is/are considered to be test queries, and are not counted against your Implementation's usage limits. Awair reserves the right to limit the number of Developer accounts provided to you.
3. Other Limitations.
a. Rate Restrictions. Your Implementation may not request queries from the Services at a rate greater than 1 request per second per device. If your Implementation requests queries at a greater rate, Awair may throttle or otherwise limit access to the Services by your Implementation.
b. Data Restrictions. Awair may also, at its sole discretion, limit the volume of data transferred to or from the Services to your Implementation.
Appendix B: Enhanced Usage Limits Subscriptions
If the usage limits provided in Appendix A are insufficient for your Implementation, you may purchase an annual subscription from Awair to increase your monthly usage limits. Subscriptions will be managed through our sales staff at [email@example.com].