API License Agreement

The following terms and conditions (the “Agreement”) govern Your use of the TempWorks Software, Inc. (hereinafter, “Licensor”) application programming interfaces and their related documentation made available to you (collectively, the “API”).  You are hereinafter referred to as “You.”

BY (I) ACCESSING OR USING THE API, OR (II) AUTHORIZING OR PERMITTING ANY INDIVIDUAL TO ACCESS OR USE THE API, YOU ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT.

If You are entering into this Agreement on behalf of a company or other legal entity, You warrant and represent to Licensor that You have actual authority to do so, and to bind such entity to this Agreement.  If You do not have this authority, or if You do not agree with any of the provisions of the Agreement in any way, You are not authorized to access or use the API.

 

1.      Grant of License.

a.                License Grant.  Subject to the terms of this Agreement, Licensor grants You a limited, non-exclusive, non-transferable, non-sub-licensable, revocable license, during the term of this Agreement, to use and make calls to the API (i) in conjunction with web or software services or applications developed by You (the “Applications”), which (ii) solely access, and solely seek to access, the customer database(s) (the “Database”) of the TempWorks Enterprise software for which You have been provided an authentication token (the “Token”).  The Token is solely issued to customers of Licensor’s proprietary front and back-office staffing software (“Enterprise”); accordingly, if You are not a customer of Licensor who has executed an ASP Agreement or Self-Hosted Agreement with Licensor, as applicable, You will need to request a Token from the customer(s) of Licensor, related to which You desire to access such Database.  If You are not an Enterprise customer, Licensor will not directly issue You a Token No license to Enterprise is being conveyed under this Agreement.

b.                Token Security.  You agree that You will not share any Tokens with any third party, will keep all Tokens secure, and will use the Tokens as the sole means of initiating calls to or otherwise accessing the API.  You assume the sole risk of loss of, and liability for, Tokens in Your possession.

 

2.      Modification.

a.                Modification of the API.  Licensor may, without any liability to You, revoke Your Tokens, modify its databases, the permitted uses under this Agreement, or any of the benefits or features provided in connection with Your use of the API at any time or without notice to You.  Modifications may affect Your Applications and may require You to make changes to Your Applications at Your own cost to continue to be compatible with the API.  In addition, Licensor may change, suspend, terminate or discontinue all or any part of the API, including the availability of the API itself, at any time without notice to You, and without liability to You.

b.                Modification of this Agreement.  Licensor reserves the right to modify this Agreement in its sole discretion at any time by posting a modified version of this Agreement to www.tempworks.com.  You are responsible for reviewing and becoming familiar with any such modification.  Your continued use of the API following any such modification constitutes Your acceptance of the modified terms of this Agreement.  If you disagree with such modified terms, Your sole remedy is to terminate this Agreement immediately pursuant to Section 8 hereof.

 

3.      Support.

a.                Support.  This Agreement, including access or license to the API, does not entitle You to any support, upgrades, or modifications (collectively, “Support”) for the API.  Licensor may elect to provide You with Support for the API in its sole discretion, but shall not be obligated to do so.  In the event Licensor opts to provide Support for the API, such agreement for support will be documented in an API Support Billing Form.  If executed between Licensor and You, such API Support Billing Form is hereby incorporated by reference.  Licensor does not make any guarantee with respect to the availability or uptime of the API.

 

4.      Your Applications and Security Measures

a.                Your Applications.  You agree that You are solely responsible, and that Licensor has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of Your Applications.  Without limiting the generality of the foregoing, You will be solely responsible for (i) the technical installation and operation of the Applications, (ii) creating and displaying information and content on, through or within the Applications, (iii) ensuring that the Applications do not violate or infringe the patents, inventions, copyrights, trademarks, trade secrets, know-how, and any other intellectual property and or/proprietary rights of any third party, (iv) ensuring that the Applications are not offensive, profane, obscene, libelous, or otherwise illegal, and (v) ensuring that the Applications are not designed to or utilized for the purpose of spamming any of Licensor’s customers, or the subjects of data contained in any Database.

b.                Protections.  The network, operating system and software of the Applications, as well as Your databases and computer systems must be properly configured to securely operate the Applications, as well as to store data and content uploaded, posted, transmitted with respect to the Licensor customer for whom You have received a Token (“Data”).  Your Applications must use reasonable security measures to protect your customers’ information, and You must not architect your systems in a way to avoid the foregoing obligation.  All Data should be stored using strong encryption.  Licensor assumes no responsibility for Data once it leaves Licensor’s servers.

 

5.      Restrictions.

a.                Restrictions.  You agree not to, and shall not attempt to: (i) license, rent, sell, assign or transfer, or make the API available to any third party, or commercially exploit the API, (ii) modify, make derivative works of, disassemble, reverse-compile, or reverse-engineer the API or any part thereof, (iii) use the API in order to build a product or service that replicates or attempts to replicate Enterprise, or any part thereof, or use the API in Applications that compete with the products or services offered by Licensor or its affiliates, (iv) access or use the API in order to monitor the availability, performance or functionality of the API or Enterprise, or for similar benchmarking purposes, (v) defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any protection mechanisms for Enterprise or the API, (vi)  use the API in a manner that adversely affects or impacts the stability of Licensor’s servers, or adversely affects or impacts the behavior of other applications using the API, (vi) use the API for any illegal, unauthorized, or otherwise improper purposes, or in any manner which would violate this Agreement; (vii) use the data accessed by or through the API for any purpose other than in compliance with all applicable laws (including, but not limited to any laws regarding privacy); or (viii) transmit any worm, virus, defect, Trojan horse, or any items of a destructive nature.

 

6.      Proprietary Information.

a.                Proprietary Information.  In the course of accessing the API, You may access or obtain confidential information of Licensor, including but not limited to code, algorithms, and/or non-customer data stored in Enterprise or the Database (collectively, “Proprietary Information”).  Such Proprietary Information, as between Licensor and You, shall belong solely to Licensor or its licensors or affiliates, as applicable, and shall include, without limitation, the API (including all derivative works and updates thereto), trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, product requirements, problem reports, performance information, software documents, and other technical, business, product, marketing and financial information, plans and data.

b.                Protection.  You agree that the Proprietary Information constitutes valuable information and trade secrets of Licensor or its licensors or affiliates, and that Licensor retains all right, title and interest in and to all such Proprietary Information.  Accordingly, You agree (i) to protect Proprietary Information from unauthorized dissemination and use, including to Licensor’s competitors; (ii) to use Proprietary Information only for the performance of Your obligations and in connection with the exercise of Your rights hereunder; and (iii) not to disclose any Proprietary Information, or any part or parts thereof, to any of Your employees, agents or contractors except to those employees or contractors of You who are aware of the confidentiality obligations imposed by this Agreement and have entered into written confidentiality agreements with You which require such employees and/or contractors to comply with confidentiality obligations no less restrictive than the requirements of this Agreement.

c.                Feedback.  You do not have an obligation to provide Licensor with suggestions, comments or other feedback (“Feedback”) regarding the API.  However, if given, Licensor may use any include any such Feedback to improve the API and any of its other products or services.  Accordingly, if You provide Feedback, you assign all right, title and interest in and to such Feedback to Licensor, and agree that Licensor may freely use such Feedback (whether by use, reproduction, license, distribution, or exploit) in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to You.

 

7.      Intellectual Property

a.                Notices. You will preserve and maintain, and will not obscure, all of Licensor’s copyright and other proprietary rights and notices in the API and all copies thereof.

b.                Ownership.  You own all right, title, and interest (including all intellectual property rights) in and to the Applications.  Licensor owns all right, title and interest (including all intellectual property rights) in and to the API and any modifications and derivative works thereof.  Except for the licenses granted in Sections (1) and 7(c), Licensor does not grant You any right or interest in any intellectual property owned or licensed by Licensor, including but not limited to the API and TempWorks Marks.  There are no implied licenses in this Agreement.

c.                The TempWorks Marks. Subject to the terms and conditions in, and during the term of, this Agreement, Licensor grants you a limited, nonexclusive, revocable, non-sublicensable and non-transferable license to display the trade names, trademarks, service marks, logos, copyright notices, domain names and other distinctive brands of Licensor (cumulatively, the “TempWorks Marks”) in accordance with this Agreement and solely for (i) attributing the source of the API, and (ii) promoting or advertising that you use the API in the Applications. All use by You of the TempWorks Marks (including any goodwill associated therewith) shall inure to the benefit of Licensor.  In using the TempWorks Marks, You shall not (w) use the TempWorks Marks in a way that implies a relationship with Licensor, other than Your licensed right to use the API, (x) use the TempWorks Marks to disparage Licensor, its products or services, or the products or services of its affiliates (y) use the TempWorks Marks in a way that tarnishes, dilutes or otherwise impairs Licensor, its brands, or the TempWorks marks, or (z) remove, obscure, distort or alter any element of the TempWorks Marks.  You will not adopt, use, or attempt to register any trademarks, service marks, or trade names that are confusingly-similar to the TempWorks Marks.  At no time during or after the term of this Agreement will you challenge or assist others in challenging the TempWorks Marks or the registration thereof by Licensor.  At Licensor’s request, You will modify or discontinue any use of the TempWorks Marks.

d.                Marketing and Publicity.  You grant Licensor a non-exclusive, royalty-free license to display the trade names, trademarks, service marks, logos, and other distinctive brands associated with You and the Applications (“Your Marks”), solely for the purpose  purposes of promoting or advertising that You use the API in the Applications.  Licensor may publicly refer to you as a licensee of the API, and Licensor may publish Your name, trademark and/or logo on Licensor’s website, in press releases, and in promotional materials without Your prior consent.  Licensor shall not intentionally modify or distort Your Marks.

 

8.      Term and Termination

a.                Termination.  This Agreement and all rights to use the API terminate automatically if (i) You, or the customer on whose behalf You seek to access the Database through the API, violate any term of this Agreement, or any separate agreement with Licensor or any of its affiliates or licensors; (ii) Licensor publicly posts a written notice of termination on www.tempworks.com; (iii) Licensor sends You a notice of termination at any time, for any reason, or (iv) Licensor disables Your access to the API.  Any termination of this Agreement shall also terminate the license granted to You to use the API hereunder.  If You wish to terminate this Agreement, You must email a termination notice to johnr@www.tempworks.com.  Your termination notice will be effective when received by Licensor.

b.                Effect of Termination.  Upon termination of this Agreement for any reason, You shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the API, and all data and other information You stored pursuant to Your use of the API, and shall so certify to Licensor that such actions have occurred.  Licensor shall have the right, in its discretion and at its sole expense, to inspect and audit Your facilities to confirm Your compliance with the foregoing.

c.                Survival.  Notwithstanding any termination of this Agreement, Licensor and You agree that the rights and duties contemplated in Sections 5, 6, 7, 8, 9, and 10(d) shall survive the termination of this Agreement for any reason.

d.                Remedies Cumulative.  In addition to any other remedies to which Licensor may be legally entitled, You agree that Licensor shall have the right to seek immediate injunctive relief in the event of a breach by You of this Agreement, or any of Your officers, employees, consultants or agents, without the necessity of posting a bond.

 

9.      Limitation of Liability, Indemnity and Disclaimer

a.                Disclaimer.  THE API IS PROVIDED BY LICENSOR “AS IS,” AND LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SECURITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.  LICENSOR DOES NOT WARRANT OR REPRESENT, OR MAKE ANY REPRESENTATION, THAT THE API IS WITHOUT ERROR, WILL BE PROVIDED WITHOUT INTERRUPTION, OR IS RELIABLE, ACCURATE OR COMPLETE.  YOUR USE OF THE API IS AT YOUR SOLE RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT RESULTS FROM YOUR USE OF THE API, INCLUDING, BUT NOT LIMITED TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, OR ANY LOSS OR DAMAGE TO DATA.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY, ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO YOU, AND LICENSOR’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PROVIDED BY LAW.

b.                Limitation of Liability.  LICENSOR WILL NOT, UNDER ANY CIRCUMSTANCE, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, PUNITIVE, SPECIAL, OR RELIANCE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST DATA, LOST REVENUES, AND LOST BUSINESS OPPORTUNITIES, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE API, REGARDLESS OF FORM OF ACTION, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.  LICENSOR’S MAXIMUM AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT SHALL BE THE SUM OF FIFTY DOLLARS AND NO CENTS ($50.00).

c.                Indemnity.  To the maximum extent permissible under law, You agree to indemnify, defend, and hold harmless Licensor and its directors, shareholders, officers, attorneys, employees, agents, successors and assigns, from and against any and all claims, suit, damages, costs, expenses (including attorney’s fees incurred at trial and any appellate levels), and losses brought by any third party (collectively, “Claims”) arising out of or related in any way to (i) the development, maintenance, use, and contents of Your Applications, (ii) use of the API in any way not in conformity with this Agreement, (iii) Your violation of any applicable law or regulation, (iv) any violation, infringement, or misappropriation of any law or any third-party right, or (v) Your breach of this Agreement.  At Licensor’s option, You will assume control of the defense and settlement of any Claim subject to indemnification by You (provided that, in such event, Licensor may at any time thereafter take over control of the defense and settlement of any such Claim, and, in any event, You will not settle any such Claim without Licensor’s prior written consent).

 

10.   Miscellaneous

a.                Headings.  The section headings in this Agreement are for convenience only and have no legal or contractual effect.

b.                Non-Exclusivity.  This Agreement and the license of the API by Licensor are non-exclusive.

c.                Export Controls.  You shall comply with all applicable export and re-export control laws and regulations in connection with Your use of the API.

d.                Governing Law and Venue.  The validity, interpretation, construction, performance, enforcement, and remedies of or relating to this Agreement, and the rights and obligations arising out of, or related to, this Agreement shall be governed and construed in all respects by the substantive laws of the State of Minnesota (without regard to the conflict of laws rules or statutes of Minnesota or any other jurisdiction that might result in the application of other law). All disputes arising under or related to this Agreement shall be commenced and maintained exclusively in the federal and state courts situated in the County of Ramsey, State of Minnesota, and Licensor and You hereby irrevocably submit to the jurisdiction and venue of any such court.  In the event of litigation between the parties arising out of or related to this Agreement, the prevailing party will be entitled to recover its attorneys’ fees and costs incurred.

e.                Relationship.  The parties are independent contractors.  Nothing in this Agreement shall be construed as creating an agency, partnership or joint venture.

f.                 Severability.  In the event that any of the terms of this Agreement are in conflict with any applicable rule of law or statutory provision or otherwise unenforceable under applicable law or regulation, such terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other terms of this Agreement and this Agreement shall continue in full force and effect.

g.                Waiver.  The failure of Licensor to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

h.                Assignment. You may not assign this Agreement, in whole or in part, without Licensor’s prior written consent. Any assignment in violation of this section is null and void.  Licensor may freely assign this Agreement.

i.                 Entire Agreement.  You acknowledge and agree that this Agreement (and any billing authorization form which regards question-answering by Licensor regarding the API Support Billing Form executed between Licensor and You, which is hereby incorporated by reference) constitutes the entire agreement between the parties with respect to the subject matter hereof and any conflicting or additional terms contained in other documents or oral discussions are void.

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