Last updated: January 20, 2020
These Developer Terms (the “Developer Terms”) govern Customer’s use of Ungapped’s Integration Software for the purpose of creating applications that make the best use of the Ungapped Service. These Developer Terms are a part of and are incorporated into the Ungapped Terms of Service located at ungapped.com/legal/terms-of-service (for the purposes of these Developer Terms, the “Agreement”). If any provision of these Developer Terms is inconsistent or conflicts with any provision in the Agreement, these Developer Terms will control solely with respect to the subject matter hereof. Capitalized terms used in these Developer Terms but not defined in these Developer Terms have the meanings given to them in the Agreement.
1 License Grant; Restrictions
1.1 License Grant
Subject to the terms and conditions of these Developer Terms, Ungapped hereby grants to Customer a non-exclusive, non-transferable, limited license, solely during the Subscription Term, to: (a) integrate, execute and use the Integration Software in connection with the Customer Applications, solely for Customer’s own business purposes in connection with the use of the Ungapped Service, in accordance with the Documentation; (b) reproduce and use a reasonable number of copies of the Documentation in support of the exercise of the license granted in clause (a) above; and (c) permit End Users to access and use, over the Internet, the Ungapped Service in connection with the End User’s use of the Customer Application.
Customer shall not use or access (nor facilitate or enable any third party to use or access) the Integration Software in any way not expressly permitted under these Developer Terms. For example, Customer shall not, and shall not allow any third party to: (a) modify, adapt, translate, decompile, reverse engineer, disassemble or otherwise attempt to derive code from the Integration Software; (b) remove, deface, obscure, or alter Ungapped’s copyright notice, Ungapped trademarks or other notices, branding, text, or images, affixed to or provided as a part of or in connection with the Integration Software; (c) transfer, sell, lease, syndicate, sub-syndicate, lend, or sublicense the Integration Software or any content or materials provided as a part of or in connection with the foregoing except as permitted under these Developer Terms; (d) use the Integration Software or any derivative works thereof for the purpose of developing or making available any product that will be owned by a third party or distributed under the trademarks or brand of a third party without Ungapped’s prior written approval; (e) use the Integration Software for any purpose other than in connection with a Customer Application as set forth in Section 1.1; (f) make or place any statements or materials concerning Ungapped on or in connection with any Customer Application or any packaging or marketing materials that has not been approved in advance by Ungapped; (g) use the Integration Software or any derivative works thereof to collect any Personal Data of any End User without such End User’s permission; (h) distribute, publish or allow access to the Integration Software other than through a Customer Application; (i) use, copy, distribute or modify the Integration Software, or any portion thereof, through any timesharing service, service bureau, network or other similar means; (j) export the Integration Software; (k) duplicate any of the specific functionality or workflow of the Integration Software; or (l) use the Integration Software or any portion thereof in a manner that (i) infringes on any third party’s Intellectual Property Rights; (ii) violates any law, statute, ordinance, contract, regulation or generally accepted practice in all relevant jurisdictions, and the Agreement; or (iii) may damage, interfere (or attempt to interfere) with, surreptitiously intercept or expropriate any system or data, including, without limitation, the Ungapped Service or Ungapped Software.
1.3 Right to Monitor and Audit
Ungapped shall have the right to monitor or audit Customer Applications or activities related to Customer’s use of the Integration Software. Customer shall not seek to block or otherwise interfere with such monitoring or audit. Audits may include requests for documents and information. Customer’s failure to reasonably comply with Ungapped’s efforts to audit Customer’s compliance with these Developer Terms shall constitute a material breach of these Developer Terms.
2 Customer Obligations
Customer will be responsible for implementing and maintaining, customization of the Ungapped Service with respect to Customer branding, and such other content as Customer has implemented, or may implement, into the Ungapped Service, including any third party script or tools for tracking analytics (collectively, the “ Customer Content”).
Customer will be responsible for the integration of the Ungapped Service with the Customer Application, including incorporating, or permitting the inclusion of, the Integration Software on the Customer Application. Customer agrees to maintain such incorporation and implement any additional Integration Software provided by Ungapped for use of the Ungapped Service.
Customer will defend at its own expense any claim or action against Ungapped or its officers, directors, employees or contractors (each an “Ungapped Indemnified Party”) brought by a third party, and will indemnify and hold harmless each Ungapped Indemnified Party from and against all costs (including reasonable attorneys’ fees) and damages incurred by such Ungapped Indemnified Party in any such claim or action, to the extent that the action is based on: (i) Customer Data; (ii) Customer Applications; (iii) Customer Content or (iv) Excluded Claims (as defined below in Section 8). The foregoing obligations are conditioned on Ungapped notifying Customer promptly in writing of such action, giving Customer sole control of the defense thereof and any related settlement negotiations, and at Customer’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of Ungapped or any Ungapped Indemnified Party or requires Ungapped or any Ungapped Indemnified Party to contribute to the settlement without Ungapped’s prior written consent.
These Developer Terms will terminate in accordance with the termination provisions expressly set forth in the Agreement.
CUSTOMER ASSUMES FULL RESPONSIBILITY FOR THE SELECTION OF THE INTEGRATION SOFTWARE TO ACHIEVE CUSTOMER’S INTENDED PURPOSES, FOR THE PROPER INSTALLATION AND USE OF THE INTEGRATION SOFTWARE AND FOR VERIFYING THE RESULTS OBTAINED FROM ITS USE. UNGAPPED DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION REGARDING THE USE, OR THE RESULTS OF THE USE OF THE INTEGRATION SOFTWARE, OR REGARDING THE FUNCTIONALITY, RELIABILITY, MERCHANTABILITY OR PERFORMANCE OF THE INTEGRATION SOFTWARE, OR THAT THE OPERATION OF THE INTEGRATION SOFTWARE WILL BE WITHOUT INTERRUPTION OR ERROR-FREE. ALL PRODUCTS, SERVICES AND RIGHTS PROVIDED BY UNGAPPED HEREUNDER AR PROVIDED “AS IS” AND “AS AVAILABLE.” UNGAPPED DOES NOT ASSUME ANY RESPONSIBILITY FOR CUSTOMER’S USE OR MISUSE OF PERSONAL DATA OR OTHER INFORMATION TRANSMITTED, UPLOADED, OR STORED USING THE UNGAPPED SERVICE AND SHALL NOT BE HELD LIABLE FOR ANY DAMAGES RESULTING FROM CUSTOMER’S USE OR MISUSE OF THIS INFORMATION. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN.
5 Limitation of Liability
IN NO EVENT SHALL UNGAPPED BE LIABLE, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF OR DAMAGE TO DATA, COST OF COVER, LOSS OF ANTICIPATED REVENUE OR PROFITS, WORK STOPPAGE OR IMPAIRMENT OF OTHER ASSETS, ARISING FROM OR IN CONNECTION WITH THESE DEVELOPER TERMS OR UNGAPPED’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE, IN WHOLE OR IN PART, THE INTEGRATION SOFTWARE, UNGAPPED SERVICE, DOCUMENTATION OR OTHER MATERIALS OR SERVICES PROVIDED BY UNGAPPED, WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT UNGAPPED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL UNGAPPED’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR IN CONNECTION WITH THESE DEVELOPER TERMS AND THE INTEGRATION SOFTWARE, UNGAPPED SERVICE, DOCUMENTATION AND OTHER MATERIALS OR SERVICES PROVIDED BY UNGAPPED HEREUNDER, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, EXCEED ONE HUNDRED DOLLARS ($100.00 USD). CUSTOMER AGREES THAT UNGAPPED’S SUPPLIERS AND AFFILIATES WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. THE FOREGOING LIMITATIONS OF LIABILITY ARE INDEPENDENT OF ANY EXCLUSIVE REMEDIES SET FORTH IN THIS AGREEMENT.
6 Application of Limitations and Disclaimers to Consumers
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the exclusions set forth in Sections 4 and 5 above may not apply to Customer if Customer is a consumer. The limitations or exclusions of warranties and liability contained in these Developer Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in these Developer Terms shall apply to consumer Customers only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where such Customer is located.
7 Basis of Bargain
The warranty disclaimer and limitation of liability set forth above in Section 4 and 5 are fundamental elements of the basis of the agreement between Ungapped and Customer. Ungapped would not be able to provide the Ungapped Service on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Ungapped’s suppliers.
8 Infringement Indemnification
Ungapped will defend at its own expense any claim or action against Customer or its officers, directors, or employees (each a “Customer Indemnified Party ”) brought by a third party to the extent that the action is based upon a claim that the Ungapped Software infringes any copyrights or misappropriates any trade secrets of such third party, and Ungapped will pay those costs (including reasonable attorneys’ fees) and damages finally awarded against Customer Indemnified Parties in any such action that are specifically attributable to such claim or those costs (including reasonable attorneys’ fees) and damages agreed to by Ungapped in a monetary settlement of such action. The foregoing obligations are conditioned on Customer notifying Ungapped promptly in writing of such claim, giving Ungapped sole control of the defense thereof and any related settlement negotiations, and at Ungapped’s reasonable request and expense, cooperating and assisting in such defense. If the Ungapped Software becomes, or in Ungapped’s opinion is likely to become, the subject of an infringement claim, Ungapped may, at its option and expense, either: (i) procure for Customer the right to continue exercising the rights licensed hereunder; (ii) replace or modify the Ungapped Software so that it becomes non-infringing; or (iii) refund to Customer any unused portion of the Subscription Fees paid in advance by Customer under the Purchase Order that relates to the infringing Ungapped Software, whereupon Ungapped may terminate that Purchase Order and this Agreement upon written notice to Customer. Notwithstanding the foregoing, Ungapped will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim (each, an “Excluded Claim”): (a) based upon any modification of the Ungapped Software by any person other than Ungapped, (b) based upon the use, operation, or combination of the Ungapped Software with software programs, data, equipment, materials or business processes not provided by Ungapped, or (c) based upon the Customer Application, Customer Data and/or Customer Content. This Section states Ungapped’s entire liability and Customer’s sole and exclusive remedy for infringement and misappropriation claims and actions. Customer and any Customer Indemnified Party may participate and retain its own counsel at its own expense.
9 Governing Law; Arbitration
9.1 Governing Law
These Developer Terms will be governed by the laws of the State of California, United States of America without giving effect to any conflict of laws principles.
Before resorting to formal dispute resolution in accordance with this Section, Ungapped encourages Customer to first contact Ungapped directly to seek a resolution. Customer and Ungapped agree that any and all disputes or claims may arise between Customer and Ungapped relating in any way to these Developer Terms or Customer’s use, or inability to use, the Integration Software, shall be resolved exclusively through final, binding and confidential arbitration. The location of arbitration shall be San Francisco, California, USA, and the arbitration shall be conducted under the rules of the American Arbitration Association, as such rules are then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction. Notwithstanding anything in these Developer Terms to the contrary, to the extent Customer has in any manner violated or threatened to violate any of Ungapped’s intellectual property rights, Ungapped may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, and Customer consents to the personal jurisdiction and exclusive venue in such courts.
11 Changes to these Developer Terms
Ungapped reserves the right to change the terms and conditions of these Developer Terms in its sole discretion from time to time. All such changes will be effective when posted on the Ungapped Website or emailed to Customer at the e-mail designated in Customer’s user account. Customer agrees to review the Ungapped Website periodically for changes. Customer’s continued use of the Ungapped Service and/or Integration Software after such changes are made to these Developer Terms and are provided on the Ungapped Websites or emailed to Customer will indicate Customer’s acceptance to such changes.
12 Questions or Additional Information
If Customer has questions regarding these Developer Terms, please send an e-mail to email@example.com.