- Section 1. Definitions.
- Section 2. Description of the PhotoXpress API.
- Section 3. Licensed Uses and Restrictions.
- Section 4. Modifications
- Section 5. Support
- Section 6. Term and Termination
- Section 7. Indemnity
- Section 8. Disclaimer of Warranties.
- Section 9. Limitation of Liability
- Section 10. Exclusions and Limitations
- Section 11. Remedies
- Section 12. Publicity
- Section 13. General Provisions
This agreement (the “Agreement”) is made by and between you (“You” including “Your”), and PhotoXpress LLC (“PhotoXpress”).
In consideration of the mutual covenants contained in this Agreement, the parties agree as follows:
Section 1. Definitions.
Unless otherwise defined herein, capitalized terms shall have the meanings given such terms in the PhotoXpress Terms and Conditions.
“Affiliate ID” means the unique identifier given by PhotoXpress to each Member qualified to participate in the PhotoXpress Affiliation Program.
“API” means Application Programming Interface.
“End User” means a user of a PhotoXpress API Client.
PhotoXpress” means PhotoXpress, LLC and any of its affiliates or subsidiaries.
“PhotoXpress API Client” means any software, such as a website or application, that uses either directly or indirectly the PhotoXpress API in any manner.
“PhotoXpress Affiliation Program” means the Affiliation Program described at www.photoxpress.com/Info/Affiliation, as amended from time to time.
“PhotoXpress API Specifications” means all information and documentation that PhotoXpress provides concerning the PhotoXpress API.
“PhotoXpress Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of PhotoXpress
“PhotoXpress Image Bank” means PhotoXpress’s database containing all of the Works that have been uploaded to PhotoXpress.
“PhotoXpress Website” means any and all websites owned and controlled by PhotoXpress with the “PhotoXpress” domain name.
“Third Party Author” means a Member that has uploaded Work(s) to the PhotoXpress Image Bank and who owns the uploaded Work(s), including all intellectual property rights in such Work.
Section 2. Description of the PhotoXpress API.
2.1 The PhotoXpress API
The PhotoXpress API generally allows a PhotoXpress API Client to query the PhotoXpress Image Bank and display the results of such query. The PhotoXpress API may consist of one or more subsets, including the Developer API and Partner API.
2.2 The Partner API
The Partner API can be used by a Member, who is qualified to participate in the PhotoXpress Affiliation Program, to send a search query to the PhotoXpress Image Bank and to display the results of such query, including the details about any retrieved Works, on its PhotoXpress API Client. End Users are then redirected to the PhotoXpress Website to download any Works and/or purchase subscription(s).
2.3 The Developer API
The Developer API allows a Developer to create non-commercial PhotoXpress API Clients, such as widgets, plugins, addons, extensions, webservices, or other APIs, that allow End Users to: (a) query the PhotoXpress Image Bank for details about Works; and (2) query PhotoXpress to get information about a user, if the End User is a Member. No works may be displayed on the PhotoXpress API Client using the Developer API.
2.4 Obtaining the PhotoXpress API
(a) To obtain the PhotoXpress API, You must: (i) be a Member; and (ii) request an API key. Your request must describe the purposes for which You intend to use the PhotoXpress API and which kind of key you need. If PhotoXpress grants Your request for access to one of the PhotoXpress APIs, it will supply You with a key (the “API Key”) that will enable You to access one of the PhotoXpress APIs.
(b) PhotoXpress reserves the right, in its sole discretion, to reject any request to use the PhotoXpress API at any time and for any reason. PhotoXpress shall not be liable to You for damages of any sort resulting from its decision to reject such a request.
Section 3. Licensed Uses and Restrictions.
3.1 PhotoXpress API License.
The PhotoXpress API and the PhotoXpress API Specifications (the “Licensed Materials”) are owned by PhotoXpress and are licensed to You, on a worldwide, non-exclusive, non-sublicensable, non-transferable and revocable basis, on the terms and conditions set forth herein. These terms define the permissible use of the Licensed Materials, and of all updates, revisions, substitutions, and any copies of the Licensed Materials made by You or for You. All rights not expressly granted to You herein are reserved by PhotoXpress.
3.2 General License Terms.
All users of the PhotoXpress API agree as follows:
(a) You shall at all times have a valid and active Membership Account that has not been terminated or suspended by PhotoXpress pursuant to the PhotoXpress Terms and Conditions.
(c) You acknowledge that the Works are the property of PhotoXpress or the Third Party Authors and are protected by intellectual property laws, including laws related to copyrights, trademark and other similar rights. You shall use Your best efforts to protect the Works to ensure that they cannot be copied, distributed, displayed or altered. You shall ensure that Third Party Authors’ names are visible on each Work displayed on Your PhotoXpress API Client and are preceded by the copyright symbol (“©”).
(d) Any time a Membership Name and Membership Password are sent to PhotoXpress through the PhotoXpress API, You shall secure such data transfer using at least 128 Bit SSL encryption.
(e) You shall not attempt to cloak or conceal Your identity or the identity of Your PhotoXpress API Client when requesting authorization to use the PhotoXpress API or at any other relevant time.
(f) You shall not use the Licensed Materials to develop a PhotoXpress API Client that constitutes, promotes, or is used in connection with spyware, adware, other malicious programs or code.
(g) You shall not use the Licensed Materials in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality.
(h) You shall not use the Licensed Materials in a manner that adversely impacts, interferes with, or disrupts the PhotoXpress Website, PhotoXpress servers, or the PhotoXpress Image Bank, or use an unreasonable amount of bandwidth. PhotoXpress reserves the right, at any time and without notice, to limit the number of queries sent by You via the PhotoXpress API in the manner and in the amount it determines in its sole discretion.
(i) You shall not sell, lease, or sublicense the Licensed Materials or access thereto. Except as expressly provided for in the Partner API, You shall not derive any revenue from the use of the Licensed Materials.
(j) You shall not use any PhotoXpress Brand Feature in any manner that implies a relationship or affiliation with, sponsorship, certification or endorsement by PhotoXpress, other than Your use of the PhotoXpress API, or that can be reasonably interpreted to suggest editorial content has been authored by, or represents the views or opinions of, PhotoXpress. You shall place the following disclaimer on Your PhotoXpress API Client: “This product uses the PhotoXpress API, but it is not certified, endorsed or sponsored by PhotoXpress, and [Your Name] is not affiliated with or related to PhotoXpress.”
(k) You shall not cache or store any Works or other data obtained via the PhotoXpress API other than for reasonable periods.
(l) Your PhotoXpress API Client shall not contain or transmit any viruses, worms, Trojan horses or other code with malicious or disruptive and/or destructive features.
(m) You shall not use the PhotoXpress API to demonstrate a comparison between PhotoXpress and its competitors in relation to pricing or any other aspect, or to otherwise promote the goods or services of any PhotoXpress competitor.
(n) You may not use the PhotoXpress API in conjunction with PhotoXpress’s subscription program. For example, You may not use the PhotoXpress API in order to display Works to End Users, and then download the selected Works for such End Users by way of a subscription.
3.3 Additional License Terms for Partner API.
All users of the Partner API also agree as follows:
(a) You shall not sell Works or allow Works to be downloaded from Your PhotoXpress API Client. You shall solely use the Partner API to redirect End Users to the PhotoXpress Website for such End User to download Works or purchase subscriptions. You shall not use the Partner API to illustrate or provide content to Your PhotoXpress API Client.
(b) You shall only derive revenue from Your use of the Partner API through Your participation in the PhotoXpress Affiliation Program. You shall not use the Partner API for any other commercial purpose and no fee shall be charged to End Users that use Your PhotoXpress API Client.
(c) You shall only derive revenue from the Affiliation Program in accordance with its terms and conditions. You shall only receive payments under the Affiliation Program if the link redirecting the End User to the PhotoXpress Website contains Your Affiliate ID in the manner described in the PhotoXpress API Specifications.
(d) You shall display on Your PhotoXpress API Client at all times a link to the homepage of the PhotoXpress Website.
(e) Your PhotoXpress API Client shall be publicly available and not require any login or other type of restricted access credentials.
3.4 Additional License Terms for the Developer API.
All users of the Developer API also agree as follows:
(a) You shall use the Developer API solely for non-commercial purposes. If Your PhotoXpress API Client derives revenue, or contemplates deriving revenue, it shall be considered a commercial use of the Developer API. PhotoXpress reserves the right to be the sole arbiter of the commercial or non-commercial status of Your PhotoXpress API Client and to monitor Your PhotoXpress API Client for as long as it uses the Developer API in order to determine its commercial or non-commercial status. If You wish to use the Developer API for commercial purposes, You must seek the permission of PhotoXpress, which it may or may not grant in its sole discretion, by contacting PhotoXpress at: api@PhotoXpress.com.
(b) You shall not store, read or process any Membership Name and/or Membership Password of any End User. Such information shall be solely transmitted through the Developer API in a manner that is consistent with this Agreement and the PhotoXpress API Specifications.
(c)With the exception of End Users’ Membership Names and Membership Passwords, Your PhotoXpress API Client shall not ask for any other information from End Users.
Section 4. Modifications
PhotoXpress reserves the right to release subsequent versions of the Licensed Materials and to require You to obtain and use the most recent version thereof.
Section 5. Support
PhotoXpress may elect to provide You with support or modifications for the Licensed Materials (collectively, "Support"), in its sole discretion, and may terminate such Support at any time and without notice.
Section 6. Term and Termination
PhotoXpress reserves the right to change, suspend, or discontinue all or any aspect of the Licensed Materials, including their availability at any time and without notice or liability.
Section 7. Indemnity
Section 8. Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE LICENSED MATERIALS IS AT YOUR SOLE RISK. THE LICENSED MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PHOTOXPRESS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) PHOTOXPRESS MAKES NO WARRANTY THAT (i) THE LICENSED MATERIALS WILL MEET YOUR REQUIREMENTS, (ii) YOUR USE OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE LICENSED MATERIALS WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY WORKS OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE USE OF LICENSED MATERIALS WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE LICENSED MATERIALS WILL BE CORRECTED.
(c) ANY WORKS OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE LICENSED MATERIALS IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM PHOTOXPRESS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
Section 9. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT PHOTOXPRESS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PHOTOXPRESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE LICENSED MATERIALS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE USE OF THE LICENSED MATERIALS; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN CONNECTION WITH YOUR USE OF THE LICENSED MATERIALS; OR (v) ANY OTHER MATTER RELATING TO THE LICENSED MATERIALS.
Section 10. Exclusions and Limitations
TO THE EXTENT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 8 AND 9 MAY NOT APPLY TO YOU.
Section 11. Remedies
Section 12. Publicity
You may not market or promote Your PhotoXpress API Client, or make any public statements, including announcements or press releases, regarding Your PhotoXpress API Client, except with the prior written permission of PhotoXpress.
Section 13. General Provisions
13.1 Entire Agreement
13.2 Choice of Law and Forum
13.3 Waiver and Severability of Terms
13.5 Relationship of the Parties
PhotoXpress shall have the right, in its sole discretion, to assign any or all of its rights or obligations hereunder. You shall have no right to assign any of Your rights or obligation hereunder.