STICKAM™ API TERMS OF USE
Thank you for using the Stickam application programming interface (the "Stickam API"). The following agreement ("API Terms of Use") describes the terms on which Advanced Video Communications, Inc. ("AVC") offers you the user of the Stickam API. By using the Stickam API, you agree to these Terms of Use and the Stickam Terms of Service ("TOS") located at http://www.stickam.com/viewTerms.do. If you disagree with any of the terms below or the Stickam Terms of Service, AVC does not grant you a license to use the Stickam API. In the event of any inconsistency between the API Terms of Use and the Stickam Terms of Service, the API Terms of Use control.
AVC reserves the right to update and change, from time to time, the API Terms of Use and all documents incorporated by reference. You can always find the most recent version of the API Terms of Use at http://www.stickam.com/viewTermsAPI.do. AVC may change the API Terms of Use by posting a new version without notice to you. Use of the Stickam API after such change constitutes acceptance of such changes.
1. Requirements
a. You must have a valid Stickam account in order to register for a Stickam API key.
2. Licensed Uses and Restrictions.
The Stickam API is owned by AVC and is licensed to you on a worldwide (except as limited below), non-exclusive, non-sublicenseable basis on the terms and conditions set forth herein. These Terms of Use define legal use of the Stickam API, all updates, revisions, substitutions, and any copies of the Stickam API made by or for you. All rights not expressly granted to you are reserved by AVC.
a. Subject to the restrictions set forth in these Terms of Use, you may use the Stickam API and any updates provided by AVC (in its sole discretion). Your license to the Stickam API under these Terms of Use continues until it is terminated by either party. You may terminate the license by discontinuing use of all or any of the Stickam API. AVC may terminate the license at any time for any reason. These Terms of Use terminate automatically if (i) you violate any term of the API Terms of Use, (ii) AVC publicly posts a written notice of termination on the Stickam website [www.stickam.com], (iii) AVC sends a written notice of termination to you, or (iv) AVC ceases providing access to the Stickam API to you.
b. Unless otherwise specified, use and redistribution of all computer code made available on Stickam is permitted in source and binary forms, with or without modification, subject to the BSD License, Copyright © 2008 by the Open Source Institute. The following conditions must be met:
(i) Redistributions in source code form must contain the copyright notice "Copyright © Advanced Video Communications, Inc. 2008, All Rights Reserved", this list of conditions, and the following disclaimer.
(ii) Redistributions in binary form must reproduce the above copyright notice, this list of conditions, and the following disclaimer in the documentation and/or other materials provided with the distribution.
(iii) Neither the name of Stickam nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission of Advanced Video Communications.
DISCLAIMER TO BE INCLUDED WITH STICKAM COMPUTER CODE
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT OWNER OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
c. Use of the Stickam API is subject to the following restrictions:
(i) You are prohibited from using the Stickam API in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to US embargo, hate materials (e.g. Nazi memorabilia), goods made from protected animal/plant species, recalled goods, hacking/surveillance/interception/descrambling equipment, cigarettes, illegal drugs and paraphernalia, unlicensed sale of prescription drugs and medical devices, pornography, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, unlicensed trade or dealing in stocks and securities, gambling items, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, non-packaged food items, weapons and accessories;
(ii) You are prohibited from using the Stickam API in any manner, for any purpose, or in any application that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality, that is misleading, deceptive or fraudulent, or in any manner inconsistent with the Stickam Terms of Service or these Terms of Use;
(iii) You are prohibited from using the Stickam API in an application designed to engage in spamming or other advertising or marketing activities that violate any applicable laws, regulations or generally accepted advertising industry practices;
(iv) You are prohibited from using the Stickam API in an application designed in a manner that might be libelous or defamatory, or in a way that is malicious or harmful to any person or entity, or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, sexual orientation, or age;
(v) You are prohibited from using the Stickam API to request, collect, solicit or otherwise obtain access to user names, passwords, or other authentication credentials belonging to Stickam Users;
(vi) You are prohibited from using the Stickam API to enable you to personally identify any Stickam User without their express consent;
(vii) You are prohibited from using the Stickam API to design an application the primary purpose of which is to distribute copyrighted content without authorization from the copyright holder;
(viii) You are prohibited from using the Stickam API in an application designed to operate nuclear facilities, life support, or other mission critical application where human life or property may be at stake. You understand that the Stickam API is not designed for such purposes and that failure in such cases could lead to death, personal injury, or severe property or environmental damage for which AVC is not responsible;
(ix) You are prohibited from selling, leasing, or sublicensing the Stickam API or access thereto or derive income from the use or provision of the Stickam API, whether for direct commercial or monetary gain or otherwise, without AVC’s prior, express, written permission;
(x) You are prohibited from using the Stickam API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, as determined by AVC in its sole discretion; and
(xi) You are prohibited from using the Stickam API in an application designed to compete with products or services offered by AVC.
d. Other Limitations
(i) You may not use the Stickam API in an application that interferes or attempts to interfere with the functionality of Stickam;
(ii) You may not use the Stickam API in an application designed or implemented in a way that might mislead a user into believing that he or she is interacting directly with Stickam or AVC, or that the application was created by or is endorsed by AVC;
(iii) You must implement and observe standards of privacy and confidentiality for the collection, use and sharing of any data related to Stickam users that are at least as stringent as the standards set forth in the Stickam Privacy Policy accessible at http://www.stickam.com/about/privacy.do, as revised from time to time.
(iv) In the event your application permits a Stickam user to download, view, listen to and/or otherwise access content owned by a third party made available by another Stickam user, you must host a page with a copyright policy that conforms with the Digital Millennium Copyright Act, register a Designated Agent to Receive Notices of Claimed Infringement with the United States Copyright Office, and conscientiously implement your copyright policy.
(v) In the event your application can be used to upload or otherwise make available to Stickam users, content owned by a third party; on each page where content can be uploaded you must include the following statement: "By making content available through this application, you warrant and represent that you own or otherwise have the right to display, perform, transmit, or otherwise distribute and sublicense that Content."
3. Ownership and Relationship of Parties.
The Stickam API may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. AVC’s rights apply to the Stickam API and all output and executables of the Stickam API, excluding any software components developed by you which do not themselves incorporate the Stickam API or any output or executables of the Stickam API. You agree to abide by all applicable proprietary rights laws and other laws, as well as any additional copyright notices or restrictions contained in these Terms of Use and in the Stickam Terms of Service. AVC owns all rights, title, and interest in and to the Stickam API. These Terms of Use grant you no right, title, or interest in any intellectual property owned or licensed by AVC, including (but not limited to) the Stickam API and Stickam trademarks.
4. Support.
AVC may elect to provide you with support or modifications for the Stickam API (collectively, "Support"), in its sole discretion, and may terminate such Support at any time without notice to you. AVC may change, suspend, or discontinue any aspect of the Stickam API at any time, including the availability of any Stickam API. AVC may also impose limits on certain features and services or restrict your access to parts or all of the Stickam API or the Stickam Web site without notice or liability.
5. Fees and Payments.
AVC reserves the right to charge fees for future use of or access to the Stickam API or the Stickam services and websites (collectively, "Stickam API Services") in AVC’s sole discretion. If AVC decides to charge for the Stickam API Services, such charges will be disclosed to you in advance.
6. Disclaimer of Any Warranty.
AVC DOES NOT REPRESENT OR WARRANT THAT THE STICKAM API IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID.
THE STICKAM API IS PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND AVC EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND/OR NON-INFRINGEMENT.
YOUR USE OF THE STICKAM API IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE STICKAM API INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.
7. Limitation of Liability.
AVC SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE STICKAM API, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT AVC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL AVC BE LIABLE TO YOU FOR ANY AMOUNT.
8. Exclusions and Limitations.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 6 AND 7 MAY NOT APPLY TO YOU.
9. Release and Waiver.
To the maximum extent permitted by applicable law, you hereby release and waive all claims against AVC, and its affiliates, officers, agents, licensors, co-branders or other partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising from or in any way related to your use of the Stickam API. If you are a California resident, you waive your rights under California Civil Code § 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." In addition, you expressly waive and relinquish any and all rights and benefits which you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
10. Hold Harmless and Indemnity.
To the maximum extent permitted by applicable law, you agree to hold harmless and indemnify AVC and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from and against any third party claim arising from or in any way related to your use of the Stickam API, including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. Stickam shall use good faith efforts to provide you with written notice of such claim, suit or action.
11. General Terms.
11.1 Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of the API Terms of Use, you and AVC shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of AVC, express or implied, and you shall not attempt to bind AVC to any contract.
11.2 Invalidity of Specific Terms. If any provision of the API Terms of Use 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 such documents remain in full force and effect.
11.3 Venue and Choice of Law. These Terms of Use and the relationship between you and AVC shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and AVC agree to submit to the personal jurisdiction of the courts located within the county of Los Angeles, California.
11.4 No Waiver of Rights by AVC. AVC’s failure to exercise or enforce any right or provision of the API Terms of Use shall not constitute a waiver of such right or provision.
11.5 Miscellaneous. The section headings and subheadings contained in this agreement are included for convenience only, and shall not limit or otherwise affect the terms of the API Terms of Use. Any construction or interpretation to be made of the API Terms of Use shall not be construed against the drafter. The API Terms of Use constitute the entire agreement between AVC and you with respect to the subject matter hereof.
This Terms of Use was last modified December 12, 2008 |
