1. Acceptance of Terms
This Agreement („Agreement“) is a contract between XY and ProfileAddress Direktmarketing GmbH. (“PROFILE”). XY includes any company, partnership, or entity that you are acting on behalf of. This Agreement applies to any use of the APIs (“application programming interface”, furthermore “API SERVICES”) provided at shop4api.com, all related sites, applications, services and tools regardless of how accessed. XY agrees with and accepts all of the terms and conditions contained in this Agreement.
XY is granted a license to access PROFILE property and services through the API Service subject to the restrictions contained in this Agreement and further subject to any additional restrictions as applicable to a particular service.
A. XY agrees and warrants that any information provided to the API SERVICES shall have been legally obtained and that its use of information from the API SERVICES shall be legal. XY agrees that it shall comply with all applicable privacy and data protection laws, rules, and applicable federal, state and local laws and regulations related to its use of the API SERVICES, including information provided to and from the API SERVICES.
B. XY agrees that it shall not:
(i) disassemble, deconstruct, decompile, or otherwise reverse engineer the API SERVICES or any other PROFILE software used with the API SERVICES;
(ii) use information obtained from a Licensed Service with any technology or in any way to produce a result or functionality of another Service; or
(iii) use the API SERVICES with computer generated, random information.
C. XY agrees that it shall not under any circumstances:
(i) use information from the API SERVICES to build a database or API for resale or for access by a third party in competition with PROFILE;
(ii) allow information from the API SERVICES to be used in any way to verify information from a third party that resells data in competition with PROFILE; or
(iii) provide access to or information from the API SERVICES to a company that resells data in competition with PROFILE or to a company that plans to resell access to the API SERVICES or any information obtained therefrom.
D. XY agrees not to provide information from the API SERVICES to any third party without first ensuring that the third party agrees in writing to be subject to the conditions of foregoing paragraphs A, B, C, and D.
E. XY acknowledges that the API SERVICES contain records that have been inserted by PROFILE (or PROFILE’s suppliers) for data security and auditing purposes.
F. Each party agrees to obtain the other party’s prior written approval of any marketing material or other information made available to a third party that describes the other party’s products or services, provided, however, that each party may make reference to the other party’s corporate name and logo on its web site and in its professional marketing materials.
G. XY agrees to notify PROFILE of any actual or suspected unauthorized use or access of the API SERVICES and provide reasonable assistance to PROFILE in the investigation and prosecution of any such unauthorized use or disclosure. In the event that PROFILE suspects that the PROFILE databases or our information has been misused by XY, we will contact our suppliers and/or law enforcement agencies (as appropriate) and will provide them with all data needed to conduct an investigation. XY consents to the provision of reasonable information (including search key data) for such investigative purposes. XY further agrees to fully cooperate with all reasonable audits of our customers and our systems generally.
H. PROFILE agrees to deliver the necessary information to enable XY to access the API SERVICES by agreeing to the Terms of Service. XY assumes responsibility for integrating the API SERVICES into its systems and applications.
I. XY acknowledges, understands, and accepts that PROFILE monitors usage statistics of the API SERVICES to ensure compliance with the conditions in these Terms of Service. Whenever PROFILE’s monitoring detects activity that is known to be associated with unauthorized usage of the API SERVICES, If XY is using API SERVICES in violation of the TERMS, PROFILE may terminate XY’s account immediately, but reserves the right to deliver a Cease and Desist email prior to suspension. If XY believes they have received a notice in error, please contact PROFILE directly.
J. XY acknowledges and agrees that the licenses granted herein to use the API SERVICES is non-exclusive.
K. Information provided to XY hereunder shall be provided “AS IS.” PROFILE shall not be held liable for any actions or omissions arising out of or in connection with XY’s use of the information. PROFILE shall not be responsible for any unavailability of the API SERVICES.
3. Prices for the API SERVICES
PROFILE shall charge for the API SERVICES the prices as set forth in the former offer. All fees are quoted in EUR and do not include any duties or taxes. It is XY’s sole responsibility to determine the tax liability associated with the purchase. XY shall pay all federal, state, and local sales, use, or other applicable taxes that may be imposed upon the provision of or use of the API SERVICES.
PROFILE further reserves the right to suspend service to any delinquent account without notice. XY is responsible for all use of our databases made by individuals using XY’s account. If XY suspects that unauthorized use of XY’s account is taking place, XY must notify PROFILE immediately.
XY agrees that XY shall indemnify and hold harmless PROFILE, its officers, members, managers, employees and agents, and all entities that have contributed information or data to, or provided services, for the service, against any and all direct or indirect losses, claims, demands, expenses (including attorneys‘ fees) or liabilities of whatever nature or kind arising in any way out of XY’s use of the service or of our databases or of the information and data contained therein.
5. Warranties and Disclaimer of Warranties
A. PROFILE warrants that the API SERVICES have been designed in a good workmanlike manner in accordance with applicable specifications and industry standards.
B. PROFILE does not warrant the uninterrupted or error-free operation of the API SERVICES.
C. Except as otherwise provided in this agreement, there are no other warranties, expressed or implied, including, but not limited to, implied warranties of merchantability, accuracy or fitness for a particular purpose. PROFILE does not warrant that the API SERVICES or any information derived from the API SERVICES will fulfill any of XY’s particular purposes or needs.
6. Limitation of Liability
Except for claims or disputes related to license, indemnification, protection of confidential information or XY’s failure to pay, neither party shall in any event be liable for any special, indirect, punitive, incidental or consequential losses or damages, including, but not limited to, lost income, lost revenue, lost profits, or any claim or demand by any third party, whether based in contract, tort, or any other theory, regardless of foreseeability and even if such party is advised of the possibility of such loss or damage. Except for claims or disputes related to license, indemnification, protection of confidential information or XY’s failure to pay, neither party’s liability under this agreement, regardless of the form of action, shall in the aggregate exceed the total amount paid for the API SERVICES for the last six (6) months under the agreement. Except for an action for non-payment, no action, regardless of form, arising out of this agreement, may be brought by either party more than one (1) year after the cause of action has accrued. The foregoing limitations on liability are independent, of and shall apply regardless of, any failure of essential purpose, or any limited or exclusive remedy of any kind.
7. Violation of Usage Guidelines and Termination
Unless directed by a government entity with appropriate jurisdiction, termination will follow this schedule:
A. First violation of these Terms of Service will incur a notice delivered to the registered e-mail address of the XY describing the violation. The XY is responsible for providing a valid email address, monitoring the email address, whitelisting or otherwise ensuring that this email address is a deliverable email address.
B. If upon notice, XY does not immediately remedy the violation of Terms, PROFILE reserves the right to suspend XY’s account indefinitely.
C. Termination of this agreement occurs by
(i) providing notice to the other party, or
(ii) service is no longer in use,
(iii) continued violation of these Terms of Service or
(iv) account is closed.
8. Force Majeure
PROFILE shall not be liable for any failure to perform or delay in performance hereunder where such failure or delay is occasioned by force majeure or an act of God (including, but not limited to, fire, embargo, labor strike, terrorism, or interruption of electrical service), or circumstances beyond a service bureau’s control which shall prevent PROFILE from providing the API SERVICES in the normal and usual course of its business.
9. Compliance with Laws
PROFILE and XY shall comply with all applicable laws, ordinances, regulations and codes in the performance of this Agreement and shall, by providing timely information to each other, assist each other in complying with such laws to the extent that it is their obligation to do so. All obligations under this Agreement shall be performed in compliance with all applicable legislation and government orders.
10. Parties in Interest
All the terms, provisions, and conditions of this Agreement shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors and assigns.
11. Entire Agreement
This Agreement contains the entire understanding of the parties and supersedes all prior agreements and understandings between the parties with respect to such subject matter, and there are no restrictions, promises, warranties, covenants or undertakings other than those expressly set forth herein. Terms set forth in any purchase order or other similar document of XY shall have no bearing or effect on this Agreement. Any such document of XY is for XY’s internal purposes only and PROFILE’s receipt of any such document shall not be deemed to modify or alter this Agreement in any manner whatsoever.
12. No Agency
PROFILE provides services as an independent contractor and nothing in this Agreement shall create any other relationship such as agency, partnership, joint venture, etc., and neither party shall represent that any such relationship exists.
A. The parties will first promptly meet to attempt in good faith to negotiate a resolution of the dispute.
B. If the dispute is not resolved by negotiation within thirty (30) days, the parties agree to first try in good faith to settle the dispute by mediation under the Commercial Mediation Rules of the American Arbitration Association, before resorting to Arbitration.
C. This Agreement provides for mandatory and binding arbitration. This means that XY and PROFILE must arbitrate claims and disputes covered by this Agreement. Arbitration is a process in which the parties submit disputes to a neutral third person for a decision on the merits. Each party has an opportunity to present evidence to the arbitration in writing or through witnesses. Arbitration proceeding tend to be more informal than court proceedings, and adherence to judicial rules of evidence is not usually required. The arbitration will decide the case by issuing a written decision called an “award.” The award will be binding. Once confirmed, an award may be enforced as a court judgment under the terms of federal or state statutes. Judicial review of an award is limited. Notwithstanding anything herein to the contrary, XY and PROFILE retain the right to file a claim in small court. Furthermore, XY and PROFILE do not agree to arbitrate class action claims. Class action claims must be brought in court.
D. Any dispute arising out of, or relating to this Agreement, or the breach thereof, that cannot be resolved by mediation within thirty (30) days shall be finally and exclusively resolved by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrators may be entered into any court having jurisdiction.
E. The arbitration will be conducted by a single arbitrator at a place mutually agreed upon by XY and PROFILE. If XY and PROFILE cannot agree on a location to conduct the arbitration then, the arbitration will be conducted in Birmingham, Alabama. The arbitration will be conducted in accordance with the Rules, as set forth above. The arbitrator will have the power to award any relief that a Court could award on any claim made by XY or PROFILE. The arbitrator also will have the power to consider defenses that Court could consider. The arbitrator will apply applicable substantive law. An arbitration award entered by the arbitrator shall be in writing and the arbitrator shall give, in writing, his or her reasons for the award. The award may be enforced by any Court having jurisdiction over the parties in the award.
F. XY and PROFILE will abide by this Agreement to arbitrate, regardless of any term to the contrary in any other writing. If XY has reached arbitration agreements with others on subjects that this Agreement covers, then XY and PROFILE agree to consolidate and all disputes into one arbitration pursuant to AAA supplementary procedures. In the event that XY or PROFILE disagree on the interpretation of this Agreement, this Agreement shall be construed to effectuate arbitration, rather than to defeat it. Every provision of this Agreement is intended to be severable. If any provision is held to be void or unenforceable for any reason whatsoever, then that portion or apportions of the Agreement shall be severed from the remainder of this Agreement, which shall remain enforceable. XY and PROFILE hereby waive the rule of construction that requires a tribunal to construe a vague or ambiguous provision against the drafting party. This Agreement is intended to constitute the entire agreement between XY and PROFILE on the subject of arbitration. This Agreement shall be enforceable as between XY and third parties even if third parties fail to participate directly in ONLINE ACCEPTANCE of this Agreement.
G. IMPORTANT—COURT WAIVER: XY and PROFILE hereby irrevocably waive our rights to a trial by judge or jury on any claim covered by this Agreement. This waiver will remain enforceable even if any portion of this Agreement is otherwise found to be unenforceable. XY and PROFILE expressly acknowledge that this waiver is made knowingly, willingly and voluntarily.
14. Governing Law
This Agreement and all disputes or claims arising out of or related to this Agreement shall be governed, construed, and enforced in accordance with the laws of Austria, without regard to conflict of laws principles.
15. Jurisdiction and Venue
Any suit, action, or proceeding arising from or relating to this Agreement, which is commenced by either party, must be brought in either a court situated in Vienna, Austria. PROFILE and XY irrevocably consent to, and agree to submit to, the jurisdiction and venue of such court in any such suit, action, or proceeding.
16. Injunctive Relief
XY acknowledges that PROFILE may suffer great harm from misuse of information obtained from the API SERVICES and accordingly XY agrees to take reasonable precautions to prevent such misuse by XY and its customers. PROFILE may seek injunctive or other equitable relief against the breach or threatened breach of this Agreement in addition to any other legal remedies that may be available.
The XY’s consent to this Agreement binds all XY’s businesses and third party beneficiaries (“RELATED XY PARTIES”). XY represents and warrants that such individual is duly authorized to enter into agreements on behalf of RELATED XY PARTIES.