By building, distributing, making available or otherwise providing applications or services that connect to and/or use the BioHiTech API (the "Third Party Application(s)") you agree to be bound by, to comply with, and are a party to, this Agreement.
"API Key(s)" means unique numbers assigned by BioHiTech that identify the Third Party Application accessing the BioHiTech Service via the BioHiTech API. API Keys are the property of BioHiTech, may not be shared, publicly or privately distributed or otherwise used except solely to exercise the licensed rights hereunder.
"Licensed Materials" means the BioHiTech API, the BioHiTech Data and Content, and accompanying or related documentation, source code, executable applications and other materials.
"User" means an individual who uses the BioHiTech Service via a Third Party Application.
"BioHiTech Data and Content" means all programs, data, content, copyrighted and other materials, processes, functionality, information and other matter that can be accessed with or by the BioHiTech API, or that is accessible by ordinary operation of the BioHiTech Services. For the avoidance of doubt, BioHiTech Data and Content includes all User information submitted to BioHiTech, and all derived data, conclusions or other information created by BioHiTech from such User submitted information.
"BioHiTech Marks" means BioHiTech's name and tradename, trademarks, service marks, logos, trade dress, overall look and feel and other branding made available for use in connection with the Licensed Materials.
"BioHiTech Service" means the electronic service BioHiTech makes available for waste analytics and related services.
By using the BioHiTech API or otherwise accessing BioHiTech Data and Content, subject to any terms in an Order Agreement, you agree that such access and use is licensed under the following licenses, and limited, as follows:
You may from time to time, gain access to proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information that is either marked as "confidential" or disclosed in such a manner that it would be reasonably apparent it should be treated confidentially ("Confidential Information"). You may use Confidential Information only to the extent necessary to exercise your rights under this Agreement. You may not disclose Confidential Information to a third party without the prior express consent of BioHiTech, provided in writing or by email. You agree that you will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that you 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. If a third party makes a legal request for Confidential Information, you will promptly notify BioHiTech in writing and reasonably cooperate with BioHiTech in protecting such information in such proceeding.
Survival. Except as provided in an Order Agreement, this Agreement shall commence on the date you first download or otherwise acquire the BioHiTech API and will remain in effect until terminated by either party by written notice. BioHiTech may terminate this Agreement immediately if BioHiTech reasonably determines in its subjective good faith that you or any of your Users have or are likely to violate any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, you will stop using, and either return to BioHiTech, or at BioHiTech's election destroy and remove from all computers, hard drives, networks, and other storage media, all copies of the Licensed Materials and any Confidential Information in your possession, and shall certify to BioHiTech that such actions have occurred. All provisions of this Agreement survive its termination except Sections 2.a and 2.b, provided that to the extent a User has downloaded or otherwise maintained a copy of the BioHiTech Data and Content, such User shall have a continuing license to use such BioHiTech Data and Content for that User's own personal purposes.
You represent and warrant that: (i) you have the necessary power and authority to enter into this Agreement, and that the performance of your obligations will not constitute a breach or otherwise violate any other Agreement or the rights of any third party arising therefrom; (ii) you will maintain, throughout the Term, all required rights and licenses related to your Third Party Applications and your Third Party Applications shall not infringe or otherwise violate any third party rights, including but not limited to third party intellectual property rights; and (iii) your uses of the Licensed Materials do and shall comply with all applicable foreign, federal, state and local laws, rules, and regulations.
You hereby indemnify, agree to defend and hold BioHiTech, its subsidiaries, affiliates, officers, employees, and agents harmless from any and all claims, damages, losses, liabilities, actions, judgments, costs, and expenses brought by a third party arising out of or in connection with: (i) any act or omission by you in connection with your use of the BioHiTech Services or the Licensed Materials; (ii) your use of the BioHiTech Services or the Licensed Materials other than as expressly allowed by this Agreement; (iii) your breach of this Agreement, including but not limited to your representations and warranties herein; (iv) your breach of applicable laws, rules, regulations or orders, or any third party obligations; (v) infringement by you of any third party's patent, copyright, trade secret, trademark or other proprietary rights; or (vi) your Third Party Applications and services.
THE BIOHITECH SERVICES AND THE LICENSED MATERIALS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. BioHiTech DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED MATERIALS AND THE BioHiTech SERVICES, 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, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, AND ANY IMPLIED WARRANTIES ARISING UNDER ANY UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT. THERE IS NO WARRANTY THAT THE SYSTEM, THE SOFTWARE, OR ANY INFORMATION, SOFTWARE, COMPUTER PROGRAM, SERVICES, EFFORTS, OR ANY SYSTEM PROVIDED BY LICENSOR WILL FULFILL ANY PARTICULAR PURPOSES OR NEEDS OF LICENSEE OR ANY AFFILIATE. FURTHER, BioHiTech DISCLAIMS ANY WARRANTY THAT YOUR USE OF THE LICENSED MATERIALS OR THE BioHiTech SERVICES WILL MEET ANY OR ALL OF YOUR REQUIREMENTS OR THAT SUCH USE WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE. AND
In no event shall BioHiTech be liable to you for any special, incidental, indirect, direct, exemplary, punitive, compensatory, or consequential damages (including loss of use, data, business or profits) arising out of or in connection with this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not BioHiTech has been advised of the possibility of such loss or damage. Any claim arising our of or relating to this Agreement must be brought within one (1) year. In any case, BioHiTech's aggregate liability under this Agreement will not exceed fifty U.S. dollars (US$50.00). The foregoing limitations will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose.
This Agreement constitutes the entire agreement among the parties with respect to the subject matter of this Agreement and supersedes and merges all prior proposals, understandings, and contemporaneous communications, whether oral, written or electronic. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any modification of or changes to this Agreement must be in a writing duly authorized by an authorized representative of BioHiTech or pursuant to the provisions herein. You may not assign any of the rights or obligations granted under this Agreement, voluntarily or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets) except with the express written consent of BioHiTech, and any attempted assignment in violation of this paragraph is void. BioHiTech may assign, transfer or delegate any of its rights and obligations hereunder without notice or consent. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the state and federal courts in Delaware. The section and paragraph headings in this Agreement, along with all provided annotations, are for convenience only and shall not affect the interpretation of this Agreement. The failure of BioHiTech to enforce any part of this Agreement shall not constitute a waiver of its right to later enforce that or any other part of this Agreement. Waiver of compliance in any particular instance does not mean that BioHiTech will waive compliance in the future. In order for any waiver of any covenant or right under this Agreement to be binding, such waiver must be memorialized in a writing duly authorized by BioHiTech. Unless otherwise specified, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. All notices to BioHiTech shall be sent to [email protected]. All notices to you shall be sent to the location or email address specified in your BioHiTech API or BioHiTech Data and Content access registration information.