POPULARMEDIA, INC.
POPULARMEDIA IMPORTER LICENSE TERMS & CONDITIONS
1. Overview
(a) PopularMedia ("PM") offers the PopularMedia Importer application program interface ("API") which provides an interface to the address book functionality of the major webmail providers such as but not limited to Yahoo, MSN/Hotmail, Gmail, AOL and LinkedIn (the "Webmail Providers").
(b) Upon providing a valid username and password for a webmail account, the PopularMedia Importer API will return all of names and email addresses associated with that end-user's contacts. This functionality provides end-users with an easy method to recall contact information, without the need for integrating or interfacing with the Webmail Providers.
(c) Users of the PopularMedia Importer API will need to receive a web service API key ("API Key") and a secret key ("Secret Key") from PM for the specific web site on which they intend to use the PopularMedia Importer API. Separate keys need to be obtained for each website the user intends to use API on. The Secret Keys must be kept secret by the user.
(d) Users of the PopularMedia Importer API are solely responsible for their use and possession of the email addresses accessed via the PopularMedia Importer API.
(e) PM reserves the right, at any time and without notice, to limit the number of times a user may access the PopularMedia Importer API.
2. Acceptance
By using the PopularMedia Importer API and related documentation (collectively, the "PM APIs"), you agree to be bound by these terms and conditions ("Terms and Conditions").
3. Use of the PM API
(a) You may not use the PM APIs in any manner or for any purpose that directly or indirectly violates any applicable federal or state law of the United States or the laws of other countries, or the legal rights or interests of any person or entity. Under no circumstance may you share or divulge your Secret Key with or to a third party.
(b) You may not use the PM APIs to send unsolicited, promotional mass electronic email messages, which is commonly known as "spamming." Any promotional electronic messages, which are sent in an unsolicited manner to 10 or more recipients, or any series of unsolicited promotional electronic messages to a single user, will be considered as spamming. Spamming also includes sending messages to: (i) distribution lists, newsgroup aliases or group aliases; or (ii) recipients who do not know you or who are unlikely to recognize you as a known contact.
(c) You may not use the PM APIs to upload, post, link to, e-mail or otherwise transmit or make available: (i) any unsolicited or unauthorized advertising or promotional materials; or (ii) content that is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of privacy or publicity rights, hateful, or racially, sexually, ethnically or otherwise objectionable or illegal.
(d) You may not use the PM APIs if you are under the age of 13 nor to solicit or collect any information from children under the age of 13.
(e) You may not: (i) prepare derivative works based on the PM APIs; (ii) reproduce the PM APIs except as may be explicitly permitted in these Terms and Conditions; (iii) sell, assign, transfer, license, sublicense, publish, disclose, display or otherwise make available the PM APIs or copies thereof in any form whatsoever to any third parties; (iv) use the PM APIs for any third party's data processing or other computing needs; (v) modify, translate, reverse engineer, decompile or disassemble the PM APIs; or (vi) remove, obscure or alter any copyright notices, trademarks or other proprietary notices, legends, labels or other identifying marks on the PM APIs.
(f) You may not use one set of API keys on more than one website.
(g) PM reserves the right, at any time, to request you to provide a detailed report of any and all uses of the PM APIs by you. Failure to provide this report to PM within three (3) business days of said request shall be deemed a material breach of these Terms and Conditions.
(h) Your use of the PM APIs shall comply with all of your existing online policies (i.e., Terms of Service and Privacy Policy), which shall be consistent with your obligations set forth herein.
(i) PM aggregates anonymous information through its provision of its services, including the PM APIs. This information does not contain any of the personally identifiable data that may be sent to PM in the course of your use of its services (i.e., no email addresses, no usernames, no passwords, etc.). PM uses this information to improve the quality of its products and services and for statistical purposes.
(j) If you have questions regarding your contemplated use of the PM APIs, or have comments or suggested improvements, please contact feedback@popularmedia.com. By sharing your ideas with PM, you grant PM irrevocable, royalty-free, world-wide and perpetual permission to use and incorporate your ideas into the PM APIs or other PM products and services, without compensation or other obligation to you.
4. API Reporting Service
(a) PM offers an API reporting service ("API Reporting Service") in renewable six-month cycles at a cost of $6,000 per six-month cycle, which provides statistical data related to use of the PM APIs by your users ("API Usage Data").
(b) Upon valid submission of an online order form, PM will promptly send you an invoice in the amount of $6,000 payable within thirty (30) days from the date that the online order form was submitted. PM will terminate your access to the API Reporting Service if payment is not made within said 30-day period.
(c) PM will attempt to contact you via email at least thirty (30) days prior to the termination of the then current six-month cycle, inquiring whether you intend to renew your use of the API Reporting Service. If an affirmative response is received, PM will issue you an additional invoice for another six-month cycle.
(d) If you are a subscriber to the API Reporting Service, the API Usage Data is to be used by you solely for non-commercial, internal informational purposes. PM reserves the right, at its option, to integrate and aggregate your API Usage Data into that of other users of the PM APIs ("Aggregated API Usage Data") for sale or other distribution to its clients; provided that PM shall not disclose any information that personally identifies you or your users. PM may also append additional metrics or data to the Aggregated API Usage Data and owns all derivative analytical or reporting works using Aggregated API Usage Data. As a condition to receiving API Usage Data, you agree that PM may identify you as a participant in the Aggregated API Usage Data reporting service: (i) to current and prospective customers; (ii) to analysts; (iii) in publications or in press releases; and (iv) by listing you as a participant in the Aggregated API Usage Data reporting services on PM's website and in PM's marketing materials.
5. Intellectual Property
You acknowledge and agree that PM owns all right, title and interest in and to the PM APIs, the API Reporting Service, the API Usage Data and the Aggregated API Usage Data, including without limitation all intellectual property rights relating thereto, whether or not copyrightable or patentable (the "PM Rights"). The PM Rights include rights to the PM APIs, the API Reporting Service, the API Usage Data, the Aggregated API Usage Data and all software, documentation and other matter associated therewith. Unless otherwise indicated by PM, the PM Rights do not include third-party components used in connection with the PM APIs and/or the API Reporting Service, or software developed wholly by you in conjunction with using the PM APIs.
6. Grant of License & Integration
(a) PM hereby grants to you a revocable, limited, non-exclusive and non-transferable license (without the right to sublicense) to use the PM APIs on one website for the sole purpose of enabling your end-users to access their address books from the Webmail Providers for legitimate purposes (the "License"). The License is perpetual, unless terminated as stated in these Terms and Conditions.
(b) You may not use the PM APIs for or in conjunction with any product or service except for those products or services offered by PM. This License does not grant you rights of any nature to any version enhancements, upgrades or new releases of the PM APIs, or to support of any kind. PM may revoke the License granted herein, or revise or cease to provide the PM APIs, at any time with or without notice.
(c) You may not integrate the PM APIs into other products or services (an "Integrated Product") or charge fees or receive other compensation of any nature for use of the Integrated Product without the prior written permission of PM.
(d) If PM permits you to offer an Integrated Product, PM will retain custody of all data collected or obtained by PM from users of your Integrated Product in conformance with PM's posted Terms of Service and Privacy Policy, as the same may change from time to time (together, the "PM Policies"). Users of your Integrated Product shall be required to accept and abide by the PM Policies prior to and as a condition to using the PM API functionality within such Integrated Product.
(e) Except as expressly permitted herein, as approved by PM in writing in advance, or as may be otherwise required by applicable law, in no event may you: (i) use any personally identifiable data obtained through the PM APIs for any purpose; (ii) disclose or otherwise make available any data or information obtained through the PM APIs to any third parties, other than users of your Integrated Product (in connection with the legitimate and proper functioning of such Integrated Product); (iii) encourage or enable users of your Integrated Product to violate the PM Policies; or (iv) take any other action that might cause you, PM or any user of the Integrated Product to violate the PM Policies.
(f) You agree that PM would be irreparably injured by your actual, alleged or anticipatory breach of these Terms and Conditions, and in any such case, PM shall have the right to such injunctive or other equitable relief from a court of competent jurisdiction as may be necessary or appropriate to prevent any actual, alleged or anticipatory breach hereof. PM shall retain such right without the necessity of proving actual damages, and such remedies shall not be deemed to be the exclusive remedies for a breach hereof, but shall be independent of and in addition to any and all other remedies available to PM at law or in equity.
(g) These Terms and Conditions shall not be interpreted as granting to you any license or right not expressly granted herein. ALL RIGHTS TO THE PM APIs NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY PM.
7. DISCLAIMER & LIABILITY LIMITATIONS
(a) THE PM APIs AND THE API REPORTING SERVICE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, PM DISCLAIMS ALL WARRANTIES (WHETHER EXPRESS, IMPLIED OR STATUTORY) REGARDING THE PM APIs AND THE API REPORTING SERVICE, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, PM DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE APIs WILL BE UNINTERRUPTED, OR ERROR OR BUG FREE.
(b) IN NO EVENT IS PM LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE PM APIs OR THE API REPORTING SERVICE, EVEN IF PM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
(c) IF PM PERMITS YOU TO OFFER AN INTEGRATED PRODUCT, UNDER NO CIRCUMSTANCES SHALL PM BE LIABLE TO YOU OR ANY USER OF SUCH INTEGRATED PRODUCT FOR ANY LIABILITY RELATED TO USE OR MISUSE OF THE INTEGRATED PRODUCT OR THE PM APIs.
(d) ANY CLAIM ARISING OUT OF OR RELATING TO THE LICENSE OR THESE TERMS AND CONDITIONS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM.
8. Indemnity
PM shall have no liability whatsoever in connection with your use of the PM APIs and/or the API Reporting Service. Further, you shall defend, indemnify and hold harmless PM and its related companies (including without limitation the directors, officers, employees, consultants, advisors, investors and agents thereof) from and against any and all claims, damages, liabilities, costs and fees of any nature (including without limitation reasonable attorneys' fees and court costs) arising from your use of the PM APIs or the API Reporting Service.
9. Term & Termination
This License shall continue until you stop using the PM API or PM revokes or otherwise terminates the License granted herein, which PM may do at any time and for any reason. You agree to notify PM promptly in writing upon your cessation of use of the PM APIs.
10. Support
You are not entitled to any support for the PM APIs, unless you make separate arrangements with PM and pay all fees associated with such support. Any such support provided by PM shall be subject to the terms hereof.
11. Government Usage
If you are part of an entity of the United States Government ("Government"), your use of the PM APIs may be restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The PM APIs are deemed to be a "commercial item," "commercial computer software" and "commercial computer software documentation," and accordingly, your use of the PM APIs shall be governed solely by these Terms and Conditions.
12. Export Laws
In using the PM API's, you shall comply with all export laws, and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), and all other applicable United States and foreign agencies or authorities. You represent and warrant that you are not located in, under the control of, or a national or resident of, any "restricted" country respecting the aforementioned laws.
13. Other Provisions
(a) These Terms and Conditions constitute the entire agreement between you and PM pertaining to the subject matter hereof, and supersede any and all written or oral agreements with respect to such subject matter.
(b) PM may amend, modify or terminate the License and/or all or a portion of these Terms and Conditions, either with respect to your use of the PM APIs or generally for all users, at any time, with or without notice or cause.
(c) Any disputes arising from or relating to the License or these Terms and Conditions shall be governed by and construed under California law without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods.
(d) Any action or proceeding arising from or relating to the License or these Terms and Conditions shall be brought in a federal court in the Northern District of California or in state court in San Francisco County, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
(e) The prevailing party in any action arising hereunder shall be entitled to an award of its costs and attorneys' fees.
(f) If any provision hereof is held to be unenforceable for any reason, such provision shall not invalidate these Terms and Conditions as a whole, and the problematic provision shall be reformed consistent with the intent of the parties but only to the extent necessary to make it enforceable.
(g) The failure of PM to act with respect to a breach hereof by you does not constitute a waiver and shall not limit PM's rights with respect to such breach or any subsequent breaches.
(h) The License is personal to you and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of your control) without PM's prior written consent. Any action or conduct in violation of the foregoing shall be void and without effect.
Last Updated May 22, 2008