API Evaluation Agreement

Effective as of August 21, 2017

IMPORTANT – THIS IS A LEGAL DOCUMENT BETWEEN YOU (WHICH SHALL BE IDENTIFIED HEREIN AS "You" OR THE "Authorized User") AND SICKWEATHER, INC. ("Sickweather"). BEFORE ACCESSING OR USING SICKWEATHER’S API, YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CONTAINED IN THIS API EVALUATION AGREEMENT (THE “Agreement”) AS THEY GOVERN ACCESS TO AND USE OF SICKWEATHER’S API (THE “API”). SICKWEATHER IS WILLING TO ALLOW ACCESS TO AND USE OF THE API ONLY ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.

Terms and Conditions

  1. LICENSE GRANT. During the Term (as hereinafter defined), Sickweather hereby grants, and You hereby accept, subject to the terms and conditions of this Agreement, a limited, non-transferable, non-sublicensable, and non-exclusive license to use the API for the sole purpose of assisting You in the evaluation of the API and for related, but Sickweather-permitted (in Sickweather’s sole discretion) access or connection to an associated online Sickweather solution(s) (with such other (apart from the API) Sickweather online solutions referenced herein collectively as the “Platform”) for your own personal purposes or for the educational purpose of engaging in hackathons conducted by Academic institutions that have an existing license with Sickweather for use of the Platform (the “Licensed Use”). This license permits You to (i) access and use the API on a single laptop, terminal, workstation, or computer; (ii) access and use the API from the Internet or through an on-line network, and (iii) create printouts of output from the API for personal use only. Any rights granted hereby are licensed and not sold or otherwise transferred or assigned to You or any third party.
  2. RESTRICTIONS. You may not modify, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove or alter any legends, notices, or markers, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use the API in any manner not expressly permitted herein. In addition, You shall not enter into any contractual relationship or other legally binding obligation with any third party or person which shall have the purpose or effect of encumbering Sickweather or the use of the API (or any part thereof). You acknowledge and agree that exceeding the scope of the license herein shall be a material breach of this Agreement and subject to the termination provisions set forth herein. In addition, You must undertake the following in connection with your evaluation of the API: (i) refrain from creating, beta testing, or marketing a product or products that compete with the API; (ii) cooperate with Sickweather to evaluate the API, including, without limitation, running such test suites and other test programs as Sickweather shall reasonably designate and promptly notifying Sickweather of any failure, error, or other malfunction of any part of the API; (iii) make yourself or your representatives reasonably available to participate in case studies and press campaigns with respect to the Licensed Use by mutual agreement of the Parties; and (v) keep a detailed log of any errors, anomalies, usability reports, feature modification requests, enhancement requests, suggested improvements, and such other reports and information regarding the API and their performance. In addition, You agree, if possible, to provide the data necessary to reproduce any errors and anomalies in the event such data is needed and meet with Sickweather, at Sickweather’s reasonable request and expense, to discuss such log or summary in detail and to diagnose or correct any reported errors or anomalies. No rights are granted herein to the Platform and any connection to or access to the Platform shall be through use of the API and by separate agreement with Sickweather (as required by Sickweather) for use of the Platform.
  3. CONFIDENTIALITY. You acknowledge and agree that in connection with this Agreement or your use of the API You may receive or gain access to the nonpublic, confidential, proprietary, or sensitive information of Sickweather (the "Confidential Information"). Accordingly, with respect to the Confidential Information of Sickweather, You agree to secure and protect the confidentiality of the Confidential Information of Sickweather (and/or its licensors) in a manner consistent with the maintenance of Sickweather's rights therein, using at least as great a degree of care as You use to maintain the confidentiality of your own confidential information of a similar nature, but in no event using less than reasonable efforts. You also acknowledge and agree that any disclosure or unauthorized use of such Confidential Information would be detrimental to Sickweather and its business and goodwill. You therefore shall not, nor permit any third party to, sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information to third parties. In particular, You acknowledge and agree that You are prohibited from disclosing or making accessible any Confidential Information of Sickweather to any unaffiliated or independent person or entity. All Confidential Information of Sickweather shall remain the exclusive property of Sickweather. Within ten (10) days following termination or expiration of this Agreement, You shall return to Sickweather or destroy, at the request of Sickweather, all Confidential Information of Sickweather.
  4. FEES AND EXPENSES. The license fees are waived during the Term (as defined below). You shall bear your own costs and expenses of performance hereunder. In the event You exceed the scope of the license granted above, You shall have purchased, in addition to any other rights or remedies available to Sickweather, a standard license at the then-standard fees and terms for such products, services, or solutions and such fees shall be immediately then due and payable.
  5. ACCESS TO THE API. Conditioned on your compliance with the terms and conditions of this Agreement, Sickweather will provide access to and use of its API as determined by Sickweather in its sole discretion, subject to required and emergency maintenance, failure of third party networks and communications facilities, and events of force majeure. The content layout, formatting, and arrangement of and related services for the Platform as made available through the designated Sickweather site or Web page shall be as provided by Sickweather in its sole discretion.
  6. AUTHORIZED USER OBLIGATIONS. You agree to assume all responsibility for your use, and the results of your use, of the API. Accordingly, by installing, accessing, or using the API, You agree to be responsible for and to abide by all applicable laws and regulations with respect to your use of the API. In addition, You represent that You will, at all times, provide true, accurate, current, and complete information when submitting information or materials to Sickweather. You acknowledge and agree that it is your responsibility to maintain compliance with the terms and conditions of this Agreement. You also acknowledge and agree that use of the Internet and access to the API is solely at your own risk.
  7. OTHER TERMS AND CONDITIONS. Additional notices, terms, and conditions, including, without limitation, Sickweather's Privacy Policy, may apply to the use of the API and to the Platform. You agree to abide by such other notices, terms, and conditions (as applicable). Sickweather will resolve any conflicts in a manner consistent with its normal business practices. If there is a conflict with this Agreement, Sickweather's obligations, if any, with respect to its services, solutions, and/or software are governed solely by the terms, conditions, notices, and agreements pursuant to which they are provided, and nothing should be construed to alter such other terms, conditions, notices, and agreements.
  8. ACCOUNT HANDLING POLICY. Registration as an Authorized User may require both a user name and a password as well as access to a unique API key in order to use or download the API. Only one Authorized User can use one user name and password and, thus, one account or unique API key. You agree to consider your user name, password, and unique API key as confidential information and to keep your Authorized User name, password, and API key confidential (and to not disclose to others). You also agree not to use another Authorized User's user name, password or API key. You will immediately notify Sickweather if You become aware of any loss or theft of your password or any unauthorized use of your user name, password, or API key.
  9. PROPRIETARY RIGHTS. This Agreement provides only a limited license to access and use the API. Accordingly, You expressly acknowledge and agree that Sickweather does not grant any implied right to You or any other person and transfers no ownership or intellectual property interest or title in and to the API (or any part thereof) to You or anyone else. The API and Platform and all associated text, graphics, interfaces, photographs, designs, sounds, artwork, computer code (including html code), software, databases, information, and documentation as well as the design, structure, selection, coordination, expression, "look and feel," and arrangement of the API, unless otherwise indicated, are owned, controlled, and licensed by Sickweather or its licensors and are protected by law including, but not limited to, United States copyright, trade secret, patent, and trademark law, as well as other state, national, and international laws and regulations. The API is Copyright © Sickweather and/or its licensors. SICKWEATHER and all other names, logos, and icons identifying Sickweather and its software, solutions, and services are proprietary trademarks of Sickweather, and any use of such marks, including, without limitation, as domain names, without the express written permission of Sickweather is strictly prohibited. Other product and company names mentioned herein or on the API may be the trademarks and/or service marks of their respective owners.
  10. FEEDBACK. Sickweather welcomes your feedback and suggestions about Sickweather's software, solutions, and services or with respect to how to improve the API. But, by transmitting any feedback or suggestions and any related information, material, or other content (collectively, “feedback”) to Sickweather, You represent and warrant that such feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that You have all rights necessary to convey such feedback to Sickweather. In addition, any feedback received by Sickweather will be deemed to include from You a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for Sickweather to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, and display (in whole or in part) worldwide, or act on such feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such information, material, or content, and You hereby waive any claim to the contrary.
  11. LINKS TO OTHER SITES. Sickweather may provide links, in its sole discretion, to other sites on the World Wide Web for your convenience in locating or accessing related information, products, and services. These sites have not necessarily been reviewed by Sickweather and are maintained by third parties over which Sickweather exercises no control. Accordingly, Sickweather expressly disclaims any responsibility for the content, the materials, the accuracy of the information, and/or the quality of the products or services provided by, available through, or advertised on these third-party Web sites. Moreover, these links do not imply an endorsement with respect to any third party or any Web site or the products or services provided by any third party.
  12. REPRESENTATIONS AND WARRANTIES. You represent and warrant to Sickweather that (i) You are at least the legal age of majority, (ii) You are authorized to enter into this Agreement, (ii) You are authorized and able to fulfill and perform the obligations and meet the conditions of an Authorized User as specified herein, and (iii) any information or data provided to Sickweather by You will not violate any law or regulation or any third party or person's right.
  13. DISCLAIMER. THE API IS PROVIDED ON AN "AS-IS" AND "AS AVAILABLE" BASIS. SICKWEATHER MAY MAKE MODIFICATIONS AND/OR CHANGES IN THE API AT ANY TIME AND FOR ANY REASON. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SICKWEATHER expressly disclaims all OTHER warranties, either express or implied, including, WITHOUT LIMITATION, any warranties OF INTERFERENCE WITH ENJOYMENT OF INFORMATION, NON-INFRINGEMENT, merchantability, QUALITY, ACCURACY, OR fitness for a particular purpose. MOREOVER, YOU ACKNOWLEDGE AND AGREE THAT SICKWEATHER DOES NOT WARRANT THAT THE API WILL OPERATE ERROR-FREE OR IN AN UNINTERRUPTED MANNER.
  14. LIMITATION OF LIABILITY. YOU acknowledge and agree that Sickweather shall not be liable or responsible for any claim, damage, or loss resulting from a cause beyond Sickweather's control. Sickweather also assumes no responsibility for YOUR FAilure to comply with any applicable law or regulation or for the deletion of or failure to store any content or information. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT Sickweather will not be liable to YOU, or anyone claiming under or through YOU, for any indirect, special, punitive or consequential damages (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF BUSINESS, PROFITS, OR INFORMATION), regardless of whether Sickweather was advised of the possibility of such damages. The ENTIRE liability of Sickweather for any claim arising out of or in connection with the Agreement shall not exceed that amount paid to Sickweather FOR USE OF THE API WITHIN THE PRIOR TWELVE MONTHS OF THE date on which such claim is made.
  15. GOVERNING LAW. This Agreement has been made in and will be construed and enforced solely in accordance with the laws of the State of Maryland, U.S.A., as applied to agreements entered into and completely performed in the State of Maryland. The state or local courts in the State of Maryland will have exclusive jurisdiction and venue over all controversies in connection with this Agreement, and You hereby consent to such exclusive and personal jurisdiction and venue. You also acknowledge and agree that any applicable state law implementation of the Uniform Computer Information Transactions Act (including any available remedies or laws) shall not apply to this Agreement and is hereby disclaimed. You access and use the API on your own volition and are responsible for compliance with all applicable local laws with respect to your use.
  16. ENFORCEMENT. Sickweather reserves the right to view, monitor, and/or record activity on the API. You shall not, nor shall You permit any third party to, disable, circumvent, or otherwise avoid any security device, mechanism, protocol, or procedure established by Sickweather for use of or with the API or the Platform. Moreover, and in accordance with the termination provision under this Agreement, Sickweather reserves the right to suspend or terminate immediately your access to the API and/or the Platform if You fail to comply with the terms and conditions of this Agreement. You also acknowledge that any breach, threatened or actual, of this Agreement by You may cause irreparable injury to Sickweather and/or its licensors, such injury would not be quantifiable in monetary damages, and Sickweather and/or its licensors would not have an adequate remedy at law. You therefore agree that Sickweather and/or its licensors (or on their behalf) shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this Agreement. Accordingly, You hereby waive any requirement that Sickweather or its licensors post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Sickweather to enforce any provision of this Agreement.
  17. TERM AND TERMINATION. This Agreement and your right to use the API will take effect at the moment You click "I ACCEPT" or You register with or use the API and is in effect until terminated earlier as set forth below (the “Term”). This Agreement will terminate automatically if You click "I REJECT". Sickweather also reserves the right at any time to terminate this agreement upon providing you notice thereof. You may also terminate at any time by ceasing to use the API and providing Sickweather with notice of such termination. But, all applicable provisions of this Agreement will survive termination, as outlined below. In particular, any fees or charges that were due to Sickweather prior to termination or expiration shall remain and shall become immediately payable to Sickweather upon termination. Upon termination or expiration, You must also delete the API and any associated materials in your control or possession. If requested by Sickweather, You shall provide written confirmation of your compliance with this obligation. Any licenses from Sickweather and any right to use the API shall immediately cease upon termination of this Agreement. The provisions concerning confidentiality, Sickweather's proprietary rights, feedback, representations and warranties, warranty disclaimer, limitation of liability, governing law, enforcement, termination, and the miscellaneous terms will survive the termination or expiration of this Agreement for any reason.
  18. MISCELLANEOUS. The relationship between You and Sickweather is and shall be that of independent contractors and nothing in this Agreement shall be construed or used to create or imply any relationship of partners, joint venturers, or employer and employee. You may not assign or otherwise transfer this Agreement or the license granted hereunder or delegate any of your duties specified herein, in whole or in part, without Sickweather's prior written consent. Any attempt of assignment, delegation, or transfer in violation of this Agreement shall be void, of no effect, and a material breach of this Agreement. Notwithstanding the foregoing, Sickweather may assign this Agreement in whole or in part and otherwise delegate its rights and responsibilities and use contractors to fulfill its obligations under this Agreement. Failure by Sickweather to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver of that or any subsequent default or failure of performance. In the event any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, You agree that unless it materially affects the entire intent and purpose of this Agreement, the invalidity, voidness, or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision. Headings are for convenience only and have no legal or contractual effect. This Agreement and Sickweather's Privacy Policy, which is hereby incorporated by reference as if set forth fully herein, represent the entire agreement between You and Sickweather with respect to subject matter herein, and they supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written between You and Sickweather with respect to the API. Please note that Sickweather reserves the right to change the terms and conditions of this Agreement and by which the API is extended to You by providing You in writing or electronically a copy of such revised terms (or notice thereof). Sickweather also has the exclusive right to provide updates, upgrades, and/or changes to any aspect of the API at any time. Your continued use of the API following any such change to such API will be deemed acceptance of any change to this Agreement or the API. If You have questions regarding the API or if you are interested in obtaining more information concerning Sickweather and its products or services, or want permission to use any Sickweather content, please contact Kris Kohl, email: kkohl@sickweather.com.