Updated: April 15, 2021
Master Terms for APIs
These Master Terms for APIs (“Master Terms”) govern all API Order Forms entered into between Jazzware, Inc., a Delaware corporation having a principal place of business at 6001 NW Broken Sound Pkwy, Boca Raton, Florida 33487, United States (“Jazzware”) and Customer.
1.1. “Agreement” means, collectively: (a) these Master Terms, (b) any API Order Form, (c) any exhibits, schedules, or appendices attached thereto or incorporated by reference, and (d) any amendments and addenda to any of the foregoing.
1.2. “API Order Form” means an order form, schedule, or other document (including an online registration page, online order form, or online “clickwrap”) entered into or accepted by Customer and that sets forth one or more Jazzware API(s) being provided by Jazzware to Customer and specific terms applicable to such Jazzware APIs.
1.3. “Customer” means the entity or individual that is a party to the Agreement with Jazzware.
1.4. “Hardware” means the hardware that is provided to Customer by Jazzware for use in connection with the provision of the Jazzware APIs, including any software installed thereon.
2. Jazzware apis
2.1. Introduction. This Agreement governs the use of Jazzware’s application programming interfaces, and the accompanying documentation, code and related materials that provide Customer with the ability to programmatically interface with certain Jazzware services and functionality, in each case as identified on an API Order Form (collectively, the “Jazzware APIs”).
2.2. Grant of License. Subject to Customer’s full compliance with all the terms and conditions of this Agreement, for the term specified in an API Order Form, Jazzware grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use the Jazzware APIs for its internal business use only. No other rights or licenses are granted by Jazzware except as expressly set forth herein.
2.3. Restrictions. The license granted above is subject to the following restrictions: (a) Customer will not attempt to cloak or conceal its identity when requesting authorization to use the Jazzware APIs nor will it use the Jazzware APIs for any reason other than in accordance with the terms and conditions of this Agreement and any documentation Jazzware provides for the Jazzware APIs; (b) Customer will not transfer, assign, sublicense, sell, rent or lease the Jazzware APIs to any third party; (c) Customer will not disassemble, reverse engineer, decompile, modify or alter any part of the Jazzware APIs; (d) Customer will not perform any action intended to introduce to Jazzware products or technology any viruses, worms, defects, malware, Trojan horses or any other destructive items; (e) Customer will not use the Jazzware APIs for any application that constitutes, promotes or is used in connection with: spyware, adware, or any other malicious programs or code; unsolicited mass distribution of email (spam); hate materials; libelous, defamatory, obscene, abusive or otherwise offensive content; hacking, surveillance or descrambling equipment or services; (f) Customer will not use the Jazzware APIs in any manner or for any purpose that violates any law or regulation, or any person’s rights, including but not limited to intellectual property rights, privacy or personality rights; (g) Customer will not use the Jazzware APIs in any manner that adversely impacts the stability of Jazzware’s servers or adversely impacts the behavior of other applications using the Jazzware APIs; (h) Customer will not modify, copy, or create derivative works of the Jazzware APIs; (i) Customer will not use the Jazzware APIs to build a competitive product or service; (j) Customer will not remove or destroy any proprietary marking, legends, notices, or license documents placed upon or contained with or within any portion of the Jazzware APIs; (k) Customer will not use the Jazzware APIs in any application or situation where failure of the Jazzware APIs could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage; (l) Customer will not authorize or permit any third party to do any of the acts described above. Violation of any of the foregoing may result in suspension of access to the Jazzware APIs.
2.4. Support. This Agreement, including access or license to the Jazzware APIs, does not entitle Customer to any support, upgrades or modifications (collectively, “Support”) for the Jazzware APIs. Jazzware may elect to provide Customer with Support for the Jazzware APIs, in its sole discretion, and may terminate such Support at any time without notice to Customer. Any Support provided by Jazzware will be subject to the terms of this Agreement and may also be subject to additional terms.
2.5. Changes to API. Jazzware may change, suspend, terminate or discontinue any aspect of the Jazzware APIs, including the availability of the Jazzware APIs themselves, at any time without notice.
2.6. Limiting API Access. Jazzware reserves the right to limit the number and/or frequency of the Jazzware API requests in its sole discretion. Jazzware may also impose limits that may restrict Customer’s access to part or all of the Jazzware APIs without notice.
2.7. Account, Password, and Security. If applicable, Customer must establish an account for accessing the Jazzware APIs (“Account”), including a username and password to access such account (“Credentials”). Customer is responsible for activities that occur under its Credentials and Account. Customer agrees to notify Jazzware promptly of any unauthorized use of its Credentials or Account or any other suspected breach of security relating to the Jazzware APIs.
2.8. Ownership. The Jazzware APIs, and all components thereof including any know-how, methodologies, processes, data, and information, are and will remain the property of Jazzware.
3. Hardware and INSTALLED software
3.1. Customer Responsibility. Except for Hardware, Customer has sole responsibility for ordering, securing, installing and ensuring proper operation of equipment or software required to enable Customer to access and use the Jazzware APIs.
3.2. Hardware. Jazzware may provide Hardware to Customer for use in connection with the Jazzware APIs. Jazzware reserves the right to charge for shipping Hardware to Customer. All Hardware will be and remain personal property of Jazzware. Customer will keep the Hardware free of liens and encumbrances. Customer will treat and maintain the Hardware with the same degree of care as Customer uses with respect to its own valuable property, but with no less than reasonable care. Upon Jazzware’s request, Customer will deliver all Hardware to Jazzware in good condition, normal wear and tear excepted and, except for freight costs, without cost to Jazzware. Customer bears the risk of loss of the Hardware while it is in the possession of Customer. However, if the Hardware ceases to function during the term of an API Order Form, Customer will contact Jazzware’s support organization for return procedures, and Jazzware will replace the defective Hardware as soon as practicable. Jazzware reserves the right to charge Customer to replace Hardware that, while in the possession of Customer, has been modified by any party other than Jazzware, or has been subject to any damage, accident, neglect, or mistreatment.
3.3. Software License. Subject to the terms and conditions of the Agreement, and the payment of all applicable fees, Jazzware hereby grants to Customer a limited, non-exclusive, revocable, non-sublicensable, and non-transferable license to use any software installed on the Hardware, exclusively in conjunction with the specific Hardware on which such software is installed. All such installed software remains the sole and exclusive property of Jazzware or its third party licensors. Except for the express license granted herein, no other licenses with respect to the installed software are granted by Customer by implication or otherwise. The installed software may contain third party software products, which may be accompanied by certain notices or license documentation and subject to disclaimers of all warranties, express or implied. Notwithstanding any other provision of the Agreement, such products are made available as-is, without warranty or indemnity of any kind. Customer will comply with the terms of all such licenses governing use of any such products.
(a) ALL JAZZWARE APIS AND THE HARDWARE ARE PROVIDED ON AN “AS IS” BASIS, (b) USE OF THE JAZZWARE APIS AND HARDWARE IS AT CUSTOMER’S OWN RISK AND (c) JAZZWARE DOES NOT (i) MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, (ii) WARRANT THAT THE JAZZWARE APIS OR HARDWARE WILL PERFORM AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, AND (iii) GUARANTEE THAT ITS PROCEDURES AND SERVICES WILL PREVENT LOSS, ALTERATIONS OR UNAUTHORIZED ACCESS TO CUSTOMER DATA OR CONTENT HOSTED, DISTRIBUTED OR DELIVERED THROUGH ANY FACILITY EMPLOYED IN THE DELIVERY OF THE SERVICES OR IN THE PERFORMANCE OF THIS AGREEMENT. THE JAZZWARE APIS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. JAZZWARE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
5. Limitation of Liability
IN NO EVENT WILL JAZZWARE BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT JAZZWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL JAZZWARE’S AGGREGATE LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, EXCEED THE AGGREGATE AMOUNT PAID TO JAZZWARE IN THE THREE (3) MONTHS PRECEDING THE MOST RECENT EVENT GIVING RISE TO THE CLAIM(S).
6. Price, Invoicing and Payment
6.1. Prices and Payment. During the term of this Agreement, Customer must pay all applicable charges set forth in the applicable API Order Form, or if not in the API Order Form then in Jazzware’s then-current price list. Unless stated otherwise in an API Order Form, recurring fees are invoiced monthly in advance.
6.2. Additional Services. Unless otherwise agreed by the parties in writing, Jazzware will have no obligation to provide any additional work beyond the scope expressly described in the API Order Form. Additional work will be charged on a time and material basis using Jazzware’s then-current professional services rates, unless otherwise agreed between the parties.
6.3. Payment Terms; Suspension. Customer will pay all invoices submitted by Jazzware within thirty (30) days of the date of the invoice. If Customer fails to make any payment when due, in addition to its remedies under this Agreement or pursuant to applicable law, Jazzware may suspend provision of the Jazzware APIs until the past-due payment is received, and may, at its discretion, require that subsequent orders be paid in full prior to performance. Jazzware reserves the right to impose a late payment charge of one and one half percent (1½%) per month, or the maximum allowed by law, whichever is less, on any invoice, that is not timely paid, until such invoice is paid in full.
6.4. Taxes. All prices exclude taxes. Except for taxes based on Jazzware’s net income, Customer will pay any applicable sales, use, excise, value added or other taxes, or amounts levied in lieu of such taxes, now or later imposed under the authority of any national, state or local taxing authority, based on sales to or by Customer. If Customer is required to withhold an amount for taxes from a payment that Customer is required to make to Jazzware under this Agreement, Customer will notify Jazzware in writing in advance prior to such withholding. Customer agrees to provide such assistance as Jazzware reasonably requests for any filing that Jazzware determines to make either to avoid the withholding or to recoup any money that is withheld.
7. Term and Termination
7.1. Term of Agreement. The Agreement will continue in effect until terminated as permitted hereunder. Each API Order Form has the term specified therein. Termination of any individual API Order Form will not affect any other API Order Form in effect between the parties at the time of such termination. Either party may terminate these Master Terms for any or no reason upon thirty (30) days’ written notice to the other party if no API Order Forms are in effect between the parties at such time.
7.2. Termination. Either party may terminate the Agreement and/or an API Order Form immediately upon written notice at any time if the other party is in material breach of any provision of this Agreement or applicable API Order Form and has failed to cure that breach within thirty (30) days after written notice from the nonbreaching party.
7.3. General Effect of Termination. Upon expiration or termination of the final API Order Form, each party will (a) delete any of the other party’s Confidential Information from computer storage or any other media including, but not limited to, online and off-line libraries and (b) return to the other party or, at the other party’s option, destroy, all physical copies of any the other party’s Confidential Information. Notwithstanding the foregoing, the receiving party may retain copies of the disclosing party’s Confidential Information (x) as part of archival records (including backup systems) that receiving party keeps in the ordinary course of its business, but only as required by receiving party’s records retention policies, (y) as may be required by law, or (z) if it is relevant to a dispute between the parties.
7.4. Survival. Any terms of this Agreement that expressly survive termination or expiration, or by their nature ought to survive termination or expiration, will survive, including but not limited to provisions regarding confidentiality, disclaimers, exclusions and limitation of liability, indemnification, effect of termination, records maintenance and audit, controlling law and jurisdiction, notices and other provisions of interpretation and enforcement.
8.1. Indemnification. Customer will defend and indemnify Jazzware, its affiliates, and its and their directors, officers and employees from and against any third party damage, loss, deficiency, cost, liability and expenses and amounts paid pursuant to court order or in settlement resulting from or arising out of any claim, suit action or proceeding (each a “Claim”) made or brought by a third party against any of the indemnified parties in connection with: (a) any actual or alleged breach of the Agreement by Customer, or (b) any actual or alleged violation, infringement or misappropriation of any law or third party right (including intellectual property, property, privacy or publicity rights) by Customer.
9. Confidential Information
9.1. Definition. “Confidential Information” means information that (a) a party designates as confidential, or (b) under the circumstances surrounding disclosure, a reasonable person would regard as confidential. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving party receives from a third party who is entitled to disclose such information to receiving party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without reference to the disclosing party’s Confidential Information.
9.2. Obligations. The receiving party will use the same degree of care to protect the receiving party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither party will use the Confidential Information of the other party for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose the Confidential Information of the other party, without the prior written consent of the other party, except: (a) to the party’s and its affiliates’ employees, officers, agents, professional advisors and counsel who have a legitimate need to know and are subject to obligations of confidentiality at least as restrictive as those contained herein; and (b) to the extent disclosure is required by law. If a party receives legal process that demands disclosure of the other party’s Confidential Information, such party will give sufficient notice to the other party to enable it to challenge the demand.
10.1. Binding Agreement; Assignment. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and assigns, but neither party may assign or otherwise transfer its rights under this Agreement without receiving the express prior written consent of the other party, except that Jazzware may assign the Agreement in its entirety in connection with a merger, acquisition, sale of substantially all its assets, or other recapitalization or reorganization.
10.2. Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof. The preprinted terms on Customer’s purchase order, Jazzware’s acknowledgement form, and any other ordering document or communication from either party will be inapplicable to any order submitted by Customer.
10.3. Notices. All notices, requests, demands, and other communications provided for under this Agreement must be given in writing and in English and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally to the party to whom the same is directed; (b) two (2) business days after deposit with a commercial overnight carrier, with written verification of receipt; or (c) five (5) business days after the mailing date, whether or not actually received, if sent by mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available. Notices to Customer may also be posted on Jazzware’s website or by e-mail (to the address listed in Customer’s account contact information). Electronic notice will be effective as of the date of posting (for notice on the website) or as of the sent date (for e-mail notice). Physical notices to Customer will be sent to the physical address listed in Customer’s account contact information. Notices will be sent to Jazzware at the following addresses, provided Jazzware may change its address for purposes of this Section 10.3, which change of address notice will be effective on receipt by Customer:
To Jazzware: Attention:
6001 NW Broken Sound Pkwy
Boca Raton, Florida 33487
10.4. Governing Law; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of Florida, without regard to conflicts of law principles thereof or to the United Nations Convention on the International Sale of Goods. Exclusive jurisdiction and venue for all disputes hereunder, including any actions to interpret this Agreement, will lie solely in state or federal courts having jurisdiction over Palm Beach County, Florida.
10.5. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, will be deemed to be an original and all of which taken together will constitute one and the same instrument. The exchange of signature pages or agreements by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, will constitute effective execution and delivery of this Agreement by the parties.
10.6. Headings. Headings and titles in this Agreement are included for convenience only and will not affect the construction or interpretation of any provision of this Agreement.
10.7. Order of Precedence. The API Order Form will not modify these Master Terms unless the API Order Form specifically identifies the term to be modified and expresses a clear intent to modify such term.
10.8. Relationship of the Parties. The parties are and always will be and remain independent contractors as to each other, and at no time will either be deemed to be the agent or employee of the other. No joint venture, partnership, agency or other relationship will be created or implied because of this Agreement. Except as expressly set forth in this Agreement, each party will bear full and sole responsibility for its own expenses, liabilities, and costs of operation, and each party will be solely responsible for payment of all compensation owed to its staff assigned to perform work under this Agreement, including without limitation, payment (if any) of employment related taxes and workers’ compensation insurance. Further, neither party will have the authority to, and will not, enter any contract on behalf of the other party or any of its Affiliates, or commit them to any obligation.
10.9. Force Majeure. Except for the obligation to make payment hereunder, neither party will be liable to the other party for any loss, injury, delay, expense, or damages arising out of any cause or event not within such party’s reasonable control and without its fault or negligence including, but not limited to: Acts of God, war, riots, insurrections, embargoes, acts of civil or military authorities, fire, flood, earthquakes, accidents, strikers, internet backbone outage, or inability to secure export permits or approvals, transportation, machinery, facilities, fuel, energy, labor or materials; provided, however, that the party whose performance is delayed or prevented promptly notifies the other party of the nature and duration of the force majeure event and resumes performance as soon as reasonably possible. In the event of force majeure, time for delivery or other performance will be extended for a period equal to the duration of the delay caused thereby. If any condition constituting force majeure continues for a period of longer than ninety (90) days, either party may terminate this Agreement.
10.10. Modifications. Jazzware may change the terms and conditions of these Master Terms from time to time (“Modifications”) in its discretion. Jazzware will give Customer notice of the changes by posting an updated version of these Master Terms online or by emailing Customer. Modifications will be effective as of the date Jazzware posts them or otherwise notifies Customer of them, unless Jazzware specifies a different effective date when it makes the Modifications. Customer is responsible for checking for updates to these Master Terms. If Customer determines in its reasonable discretion that a Modification will have a material, adverse effect on Customer, then for a period of ten (10) business days after the date of notice to Customer (the “Termination Window”), Customer may, as its sole and exclusive remedy for any Modification, terminate without penalty any affected API Order Form upon written notice to Jazzware. By continuing to access or use the Jazzware APIs after such Termination Window, Customer agrees to be bound by such Modification.
10.11. Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever. In such event, the parties will negotiate, in good faith, and substitute a valid and enforceable provision that most nearly implements the parties’ intent.
10.12. Third party Beneficiaries. Nothing herein, express or implied, is intended to nor will be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or about any agreement or provision contained herein or contemplated hereby.
10.13. Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by both parties. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.