Application Developer and API Agreement
This Application Developer and API Agreement (the, “Agreement”) was last modified on April 16th, 2020 by BlueX Trade, Inc., and its subsidiaries (collectively, “BlueX”, “We” or “Us”).
By (1) executing any related Quotation, (2) clicking the “I ACCEPT” button below, (3) accessing or using the API, or (4) authorizing or permitting any individual to access or use the API, you (“Licensee”, “You”, or “Your”): (a) acknowledge that You have read and understand this Agreement; (b) represent and warrant that You have the right, power, and authority to enter into this Agreement; and (c) accept this Agreement and agree that You are legally bound by its terms. If You are entering into this Agreement for and on behalf of a company, organization, or other legal entity (an “Entity”), You are agreeing to this Agreement for and on behalf of that Entity and further representing and warranting to BlueX that You have the right, power, and authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Licensee”, “You”, and “Your” shall refer to such Entity and its Affiliates. If You do not have the requisite right, power, and authority to enter into this Agreement or if You do not agree with the terms of this Agreement, You must not accept this Agreement and may not access nor use the API.
For purposes of this Agreement, the below terms, used but not otherwise defined herein, shall have the meanings set forth below.
Affiliate: means, with respect to any Entity, any other Entity that directly or indirectly controls, is controlled by, or is under common control with that Entity. The term “control” for purposes of this definition means the power to direct or cause the direction of the management and policies of an Entity, whether through the ownership of voting securities, by contract, or otherwise, and “controlled by” and “under common control with” have correlative meanings.
API: means the application programming interface and any API Documentation, source code, executable applications, and other materials made available by BlueX through the Developer Website.
API Documentation: means the API documentation described at developer.bluextrade.com from time to time.
API Key: means the security key BlueX makes available for You to access the API.
Applications: mean web or other software services or applications developed by Licensee that utilize or interact with the API and are authorized to be Published pursuant to this Agreement.
BlueX Marks: mean BlueX and BlueX’s other product and service names, trademarks, service marks, branding, and logos made available for use in connection with the APIs pursuant to this Agreement.
BlueX Service: means BlueX’s technology and application software, including all related support and documentation, made available by BlueX on a hosted basis as listed and described at www.bluextrade.com.
BlueX Service Data: means the data that is transmitted via the API to Licensee for use in the Applications.
Developer Website: means the website located at developer.bluextrade.com.
Intellectual Property Rights: mean patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights.
Licensee Marks: mean Licensee’s product and service names, trademarks, service marks, branding, and logos made available for use in connection with the Applications.
Publish/Published/Publishing: means making an Application available to one or more Subscribers for Subscribers’ internal use only.
Quotation: means the quotation, if any, You entered into with BlueX which specifically incorporates this Agreement and of which this Agreement forms an integral part.
Subscriber: means an authenticated user any Application Published by Licensee.
2. LICENSES AND ASSIGNMENT
2.1 Subject to and conditioned on Your compliance with all terms and conditions of this Agreement and any Quotation and all other terms and conditions incorporated herein or therein by reference, including the conditions set forth in Section 3 hereof and the payment of all amounts described in any Quotation, BlueX grants to You a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term (as defined in Section 14 hereof) to: (a) use and make calls to the API to develop, implement, Publish, and use Applications and (b) use and display the BlueX Marks only to identify that the BlueX Service Data originates from the BlueX Services. If BlueX believes, in its sole discretion, that You have violated or attempted to violate any condition of the license granted above, such license may be temporarily or permanently revoked, with or without notice to You. You acknowledge that there are no implied licenses granted under this Agreement. We reserve all rights that are not expressly granted. You may not use the API or any BlueX Mark for any other purpose without Our prior written consent. Unless We otherwise expressly consent in writing, You: (a) must obtain an API Key through the registration process available at developer.bluextrade.com or directly from Our engineering staff in order to use and access the API; (b) may not share Your API Key with any third party; (c), must keep Your API Key and all log-in information secure; and (d) must use the API Key as Your sole means of accessing the API. Your API Key may be revoked at any time by Us.
2.2 If You or any of Your employees, contractors, and agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the API or the BlueX Service, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), all such Feedback is and will be treated as non-confidential. You hereby assign to Us on Your behalf, and on behalf of Your employees, contractors, and agents, all right, title, and interest in and to, and We are free to use, without any attribution or compensation to You or any third party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although We are not required to use any Feedback. Should any assignment of any rights, title, or interest in and to any Feedback be deemed invalid or unenforceable, You grant to BlueX and each of its Affiliates a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the BlueX Service or API any such Feedback.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 You shall comply with (a) all terms and conditions of this Agreement, any Quotation, and all other terms and conditions incorporated herein or therein by reference; (b) all applicable laws, rules, and regulations; and (c) all guidelines, standards, and requirements that may be posted on the Developer Website from time to time (the “API Guidelines”). In addition, You shall not use the 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 (together, “Malicious Software”); counterfeit goods; items subject to U.S. embargo; unsolicited mass distribution of email (”spam”); multi-level marketing proposals; hate materials; hacking, surveillance, interception, or descrambling equipment; libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content; stolen products or items used to commit theft; hazardous materials; or any other illegal activities.
3.2 Without in any way limiting the generality of Section 3.1 hereof, except as expressly authorized under this Agreement, Licensee shall not, and shall not attempt to, through any Application or otherwise:
(a) copy, modify, or create derivative works of the API, in whole or in part;
(b) rent, lease, lend, repackage, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the BlueX Services, or any part thereof, the API, or the BlueX Service Data;
(c) use or assist a third party in using the API in such a way to circumvent the authentication requirements for any Subscriber or cloak or conceal Your identity or the identity of any Application when requesting authorization to use the API;
(d) use the API or any BlueX Service Data in any manner that does or could potentially undermine the security of the BlueX Service, the API, BlueX Service Data, or any other data or information stored or transmitted using the BlueX Services;
(e) interfere with, modify, or disable any features, functionality, or security controls of the BlueX Services or the API;
(f) defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any BlueX Service or API protection mechanisms;
(g) reverse engineer, decompile, disassemble, or derive or gain access to, any component of the API or the BlueX Service, including any source code, underlying ideas, algorithms, structures, or organizational forms thereof;
(h) remove any proprietary notices from the API;
(i) use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person or Entity, or that violates any applicable law;
(j) combine or integrate the API with any software, technology, services, or materials not authorized by BlueX;
(k) use the API to replicate or replace the user experience of the BlueX Service;
(l) violate any explicit rate limitations on calling or otherwise utilizing any API; or
(m) make any modifications to any BlueX Service Data, other than as reasonably necessary to modify the formatting of such BlueX Service Data in order to display it in a manner appropriate for the relevant Application.
3.3 Licensee acknowledges that Licensee is solely responsible, and that neither BlueX nor any of its Affiliates has any responsibility or liability of any kind, for the content, development, operation, support, or maintenance of any Application. Without in any way limiting the generality of the foregoing, Licensee shall be solely responsible for:
(a) the technical installation and operation of any and all Applications, including compliance with the technical and policy-implemented limitations of the API and the restrictions of this Agreement in designing and implementing the Applications;
(b) creating and displaying information and content on, through, or within the Applications;
(c) ensuring that its Applications do not contain or introduce Malicious Software into the BlueX Service, the API, any BlueX Service Data, or other data stored or transmitted using the BlueX Service; and
(d) ensuring that neither any Application nor any action or omission by any Subscriber shall cause Licensee to breach any of its obligations under this Agreement, including without limitation its obligations under Sections 3.1 and 3.2 hereof. Any and all acts by each and every Subscriber shall be attributed to the Licensee and deemed for all purposes hereunder to be acts of the Licensee.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS
4.2 Licensee represents, warrants, and covenants that (a) its Applications and Licensee Marks, the use of such Applications by its Subscribers, and the activities with respect to such Applications and Licensee Marks undertaken by BlueX in accordance with the terms of this Agreement, do not and will not violate, misappropriate, or infringe upon the Intellectual Property Rights of any third party; (b) it (i) is in compliance, and will continue to comply, with all applicable local, state, national, and international laws and regulations, including, without limitation, all applicable export control laws and (ii) has and will maintain all licenses, permits, and other permissions necessary to develop, implement, and Publish its Applications; (c) its Applications do not and will not contain or introduce any Malicious Software into the BlueX Service, the API, any BlueX Service Data, or other data stored or transmitted using the BlueX Service; and (d) its Applications are not and will not be designed to or utilized for the purpose of spamming any Subscribers or other users of any Application.
6. DATA COLLECTION
You acknowledge that, as between You and Us, (a) We own all right, title, and interest, including all Intellectual Property Rights, in and to the BlueX Services, the API, the BlueX Marks, BlueX’s other technology and any BlueX Service Data and (b) You own all right, title, and interest, including all Intellectual Property Rights, in and to Your Applications, excluding the aforementioned rights in Section 7(a) above. You shall use commercially reasonable efforts to safeguard the API and BlueX Marks (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. You shall promptly notify Us if You become aware of any infringement of any Intellectual Property Rights in the API or the BlueX Marks and shall fully cooperate with Us, in any legal action taken by Us to enforce Our Intellectual Property Rights. Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns (a) to BlueX any of Licensee’s Intellectual Property Rights in its Applications or Licensee’s Marks or other technology or (b) to Licensee any of BlueX’s Intellectual Property Rights in the BlueX Services, the API, the BlueX Marks, BlueX’s other technology, or any BlueX Service Data.
This Agreement does not entitle Licensee to any support for the BlueX Services or the API, unless Licensee makes separate arrangements with BlueX for such support. Licensee is solely responsible for providing all support and technical assistance to users of its Applications including Subscribers who access, deploy, and/or purchase its Applications. Licensee acknowledges and agrees that BlueX has no obligation to provide support or technical assistance to the users of Applications and Licensee shall not represent to any such users that BlueX is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to users of its Applications.
Fees and other amounts payable to BlueX by Licensee in connection with the API shall be paid in accordance with the terms and conditions set forth in the relevant Quotation, if any.
Licensee may from time to time, gain access to BlueX’s confidential or proprietary information (“Confidential Information”). Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein, Licensee may not disclose Confidential Information to a third party without the prior express consent of BlueX, provided in writing or by email. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it shall protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
11. DISCLAIMER OF WARRANTIES
ALL ASPECTS OF THE SERVICES AND THE API, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND BLUEX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT BLUEX DOES NOT WARRANT THAT THE BLUEX SERVICE OR API WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM BLUEX OR THROUGH THE BLUEX SERVICE OR API SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. LIMITATION OF LIABILITY
12.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE API, OR THE BLUEX SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
12.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BLUEX’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH CLAIM.
12.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, BLUEX’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Licensee shall indemnify, defend and hold harmless BlueX, its Affiliates, and each of their officers, directors, employees, agents, successors, and assigns (each, an “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, incurred by an Indemnified Party (collectively, “Losses”) arising from or related to (a) any breach of an obligation, representation, warranty, covenant, or other provision of this Agreement or (b) any matter for which Licensee has expressly agreed to be responsible pursuant to this Agreement. BlueX shall promptly notify Licensee in writing after obtaining knowledge of any Losses or discovery of facts on which an Indemnified Party intends to base a request for indemnification under this Section 13. BlueX reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of its choice. Licensee may not enter into any third party agreement that would, in any manner whatsoever, constitute an admission of fault by any Indemnified Party or bind any Indemnified Party in any manner, without BlueX’s prior written consent. In the event BlueX assumes control of the defense of any claim, BlueX shall not settle any such claim requiring payment from Licensee without Licensee’s prior written approval.
14. TERM AND TERMINATION
This Agreement will become effective on the first day You (a) execute any related Quotation, (b) click the “I ACCEPT” button below, (c) access or use the API, or (d) authorize or permit any individual to access or use the API and will remain in effect until terminated pursuant to this Section 14 (the period during which this Agreement is effective, the “Term”). Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. For the avoidance of doubt, any termination of this Agreement shall also terminate the licenses granted to Licensee hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to BlueX, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Licensee’s possession, and shall certify to BlueX that such actions have occurred. Sections 3, 4, 7, 9-21 hereof shall survive termination of this Agreement.
Licensee may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Licensee’s rights hereunder or delegate performance of Licensee’s duties hereunder without BlueX’s prior written consent, which consent shall not be unreasonably withheld. BlueX may assign all or any part of this Agreement or BlueX’s rights hereunder or delegate performance of BlueX’s duties hereunder without Licensee’s consent. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and permitted assigns.
16. ENTIRE AGREEMENT
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best effect the parties’ original intent to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full effect.
18. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
All notices to be provided by BlueX to Licensee under this Agreement may be delivered in writing (a) by internationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by Licensee to BlueX or (b) electronic mail to the electronic mail address provided for the Licensee contact identified on any Quotation. Licensee must give notice to BlueX in writing by Courier or mail to the following address: BlueX Trade, Inc., Attn: Legal Department, 11F, No. 132, Nanjing East Road Section 2, Taipei, Taiwan. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered, upon receipt.
20. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Francisco County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the API by You, the Subscribers, or any other user of an Application.
21. EXPORT REGULATION
The API may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You will not, directly or indirectly, export, re-export, or release the API to, or make the API accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You will comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the API available outside the United States.
Aggregator Supplemental Terms and Conditions
These Aggregator Supplemental Terms and Conditions (the “Supplemental Terms”) form an integral part of the Application Developer and API Agreement You have entered into with BlueX and shall be construed in all respects to be one and the same instrument therewith. If You have been identified as an Aggregator by checking the appropriate box in any Quotation, these Supplemental Terms shall apply. In all other cases, these Supplemental Terms shall have no force or effect.
Prior to allowing any Subscriber to access any Application You must require that such Subscriber: (a) has read and understood the terms and the conditions of the Application Developer and API Agreement and (b) has agreed not to cause You to violate any of such terms and conditions. Provided that You have fulfilled your obligations with respect to a Subscriber pursuant to these Supplemental Terms and notwithstanding anything to the contrary in the Application Developer and API Agreement, You are permitted to charge such Subscriber, either directly or indirectly, for such Subscriber’s use of the API.