Terms of Service
API TERMS OF SERVICE
TERMS OF SERVICE
Version Alpha 3.2
These Terms of Service constitute an agreement (this “Agreement”) by and between you, the “Recipient,” and DOCOMO Innovations, Inc., a corporation providing the Data Ninja Service (“Provider”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY LOGGING ON TO THE SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. PLEASE COPY THIS AGREEMENT IN ORDER TO PRINT IT FOR YOUR RECORDS.
This Agreement was last updated on June 21, 2017. It is effective between the Recipient and the Provider as of the date Recipient accepts this Agreement.
- “Account” refers to the Service plans and features selected by Recipient through Provider’s customer portal at the time of enrollment and accepted by Provider.
- “Documentation” means online user guides, training materials, or other documentation made available for the use of the Service, as updated from time to time.
- “Malicious Code” means code, files, scripts, or program intended to do harm or subvert security measures, including, but not limited to, viruses, worms, time bombs, and Trojan horses.
- “Recipient Data” refers to data in electronic form submitted by Recipient through the Service.
- “Service” or “Services” refer to Provider’s Data Ninja service. The Services include such features as are set forth on Provider’s website (https://dataninja.net), as they may be changed from time to time.
- Provider will provide the Services to Recipient pursuant to its standard policies and procedures of the Recipient’s Account then in effect and use commercially reasonable efforts to make the Services available 24 hours per day, 7 days per week, except for (1) planned downtimes for which the Provider will give at least 4 hours’ written notice, and (2) Service lapse or unavailability caused by circumstances beyond our control, including, but not limited to natural disaster, act of government, act of terror, data breaches, and denial of service attacks. Services may be hosted by, and payments processed through, Amazon API Gateway or AWS Marketplace, as described below.
- Amazon API Gateway. Services may be purchased through Amazon API Gateway as monthly subscriptions. The terms of the subscription will depend on the specific service and subscription tier purchased by the Recipient. For example, Recipients of the Data Ninja service may make an allotted number of daily or monthly queries to the Service depending on the subscription tier level purchased. Recipients exceeding the daily or monthly allotted queries will be charged for each additional query at the rate stated on the pricing page. Subscriptions will automatically renew at the end of each term. RECIPIENT ACKNOWLEDGES THAT THEIR PAYMENT METHOD WILL BE AUTOMATICALLY CHARGED FOR ADDITIONAL QUERIES AND SUBSCRIPTION RENEWALS. PLEASE REFER TO THE PAYMENT PROVIDER’S TERMS OF SERVICE DOCUMENT FOR ADDITIONAL DETAILS ABOUT AUTOMATIC PAYMENTS.
- AWS Marketplace. Services may be purchased through AWS Marketplace on a per query basis. Recipients are charged the specified rate for each query made. RECIPIENT ACKNOWLEDGES THAT THEIR PAYMENT METHOD WILL BE AUTOMATICALLY CHARGED FOR THE NUMBER OF QUERIES MADE EACH MONTH. PLEASE REFER TO THE PAYMENT PROVIDER’S TERMS OF SERVICE DOCUMENT FOR ADDITIONAL DETAILS ABOUT AUTOMATIC PAYMENTS.
- Provider may change features and pricing of Service plans from time to time in its sole discretion and without advance notice.
- Service Failures. In the event of any “Service Failure,” which is a lapse of service greater than three (3) business days other than lapses described in Paragraph 2(A), Provider will issue Recipient a refund prorated based on the length of Service Failure in relationship to one month of subscription. Refunds are issued only at the request of the Recipient. Refunds issued pursuant to this Agreement are Recipient’s sole remedy for any Service Failure. Recipients of any “free” or “no charge” subscription tier will not be entitled to any refund or remedy for Service Failures.
3. Service Fees
- Except in the case of Service Failures, Service fees are non-refundable, and unused queries will expire at the end of the month. Unused queries will not be carried over to the next month. No refunds of any kind will be given for unused queries. There will be no refunds or credits for partial use of Service. Subscriptions will automatically renew after each term until terminated or cancelled.
- Recipient agrees to pay all applicable taxes imposed by law on the purchase/sale of the Services, except for taxes based on the Provider’s income.
4. Proprietary Rights and Licenses.
- Provider retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service (except open source software, if any) and all logos and trademarks reproduced through the Service. This Agreement does not grant Recipient any intellectual property rights in or to the Service or any of its components.
- Recipient grants Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Service any Recipient Data, suggestion, enhancement request, recommendation, correction, or other feedback relating to the operation and provision of the Services.
5. Usage Restrictions.
- Recipient shall not (1) make any Service available to, or use any Service for the benefit of, anyone other than the Recipient, (2) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service or Documentation in a service bureau or outsourcing offering, (3) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (4) use a Service to store or transmit Malicious Code, (5) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (6) attempt to gain unauthorized access to any Service or its related systems or networks, (7) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, (8) copy, reverse compile, or reverse engineer the Service or any part, feature, function or user interface thereof, (9) access any Service in order to build a competitive product or service, or (10) use the Service to infringe the copyrights, trademark rights, trade secret rights, or other intellectual property rights of any person or entity.
- RECIPIENT SUBMITS DATA TO THE SERVICE AT ITS OWN RISK. The Service is not intended to collect or process personal or proprietary information nor information that may present a risk of harm to Recipient, end users, Provider, or others in the event of unauthorized access or disclosure. Recipient agrees not to submit any such information to the Service or to use the Service to collect or process any such information, including, without limitation: (1) Social Security numbers, driver’s license numbers, passport numbers, taxpayer identification numbers, or other government-issued identification numbers; (2) payment card data, including credit and debit card numbers; (3) financial account numbers or other financial account information; (4) passwords, PINs, or other authentication credentials; (5) information collected from end users under the age of 18 or from any application or online service that is directed to children; (6) health data, genetic data, or biometric data; (7) geolocation data; or (8) sensitive personal information, such as information related to an identified or identified individual’s race, religion, ethnicity, sexual life or practices, medical or health information, genetic or biometric information, biometric templates, political or philosophical beliefs, political party or trade union membership, background check information, judicial data such as criminal records or information on other judicial or administrative proceedings. The Services are not designed or intended to be used by Recipient for data storage purposes, and Provider is under no obligation to store, archive, or otherwise maintain any Recipient Data. Recipient is solely responsible for creating and maintaining back-up copies of Recipient Data.
- In the event of Recipient’s material breach of these usage restrictions, Provider may suspend or terminate Recipient’s access to the Service, in addition to such other remedies as Provider may have at law or pursuant to this Agreement. This Agreement does not require that Provider take any action against Recipient or any other customer for violating the usage restrictions, but Provider is free to take any such action it sees fit.
- Provider requests that Recipients with information about a violation of these usage restrictions report such violations to email@example.com.
6. Representations & Warranties.
- Each Party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.
- Each Party represents and warrants that it is not named on any U.S. government denied-party list.
- Recipient represents and warrants that Recipients possesses all rights necessary to provide Recipient Data to Provider for the purposes set forth herein.
- Provider represents and warrants that the Services will perform substantially in accordance with the applicable Documentation.
- Except for the express warranties specified in Section 6, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL PERFORM WITHOUT ERROR OR IMMATERIAL INTERRUPTION.
7. Indemnifications & Disclaimers.
- RECEIPIENT USES THE SERVICE AT ITS OWN RISK. PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND RECIPIENT AGAINST ANY CLAIMS OR CAUSES OF ACTION RELATED TO THE SERVICE, INCLUDING WITHOUT LIMITATION CLAIMS OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. However, if the Provider determines that the Service or any of the Documentation may have violated a third party’s intellectual property rights, Provider may choose to either modify the Service and related Documentation to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow continued use. If the foregoing corrective actions are commercially unreasonable or unfeasible, Provider may discontinue the Service and withhold Documentation while refunding the Recipient for a prorated portion of the subscription term for which Recipient may have pre-paid.
- Recipient agrees to hold harmless and indemnify Provider, its agents, employees, and officers from and against any third party claim arising or in any way related to Recipient’s use of the Service, including liability or expense arising from all claims, losses, damages, suits, judgments, and attorneys’ fees of every kind and nature. In such a case, Provider will send written notice of such claim, suit, or action.
- Information, periodicals, articles, and other documents provided to the Recipient through the Services may contain a variety of views and opinions. Such views and opinions are those of the authors alone and do not reflect the views and opinions of the Provider or the individuals employed by the Provider.
8. Confidentiality. Except as provided in this Agreement, including without limitation Section 10 herein, Provider will make commercially reasonable efforts to preserve the confidentiality of Recipient’s Recipient Data; provided that Provider will have no obligation to preserve the confidentiality of Recipient Data that (1) was or becomes publically known through no fault of Provider, (2) is disclosed to Provider by a third party under no obligation of confidentiality, (3) becomes subject to governmental or court order, or (4) information that cannot be reasonably construed as being confidential whether or not uncombined or aggregate in nature.
9. Limitation of Liability.
- ROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY RECIPIENT FOR THE SERVICE IN THE IMMEDIATE THREE (3) MONTHS PRECEDING THE CLAIM. PROVIDER AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION, LOST DATA, LOST REVENUES, LOST PROFITS, OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, WHETHER OR NOT ANY SUCH LOSSES OR DAMAGES ARE CAUSED BY PROVIDER OR A THIRD PARTY.
- THE LIABILITIES LIMITED BY THIS SECTION 9 APPLY: (1) TO LIABILITY FOR NEGLIGENCE AND GROSS NEGLIGENCE; (2) REGARDLESS OF THE THEORY OF LIABILITY OR FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (3) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (4) EVEN IF RECIPIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THIS SECTION 9, PROVIDER’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. PROVIDER WILL HAVE NO LIABILITY FOR A THIRD PARTY’S DISCLOSURE RECEIPIENT’S CONFIDENTIAL INFORMATION OR RECIPIENT’S DATA.
10. Data Management.
- Location and Use. The Service is operated from the United States, and Recipient Data may be maintained in the United States or any other jurisdiction in which Provider or its service providers have operations. Provider’s uses for Recipient Data, include, but are not limited to, providing, maintaining, and improving the Service. The Recipient, wherever located, agrees and acknowledges that data submitted to the Service may be transferred out of the Recipient’s location and jurisdiction and into the United States or any other jurisdiction in which Provider or its service providers have operations.
- Disclosures. Provider may disclose Recipient Data or other data as Provider believes to be necessary or appropriate: (1) under applicable law; (2) to respond to requests from public and government authorities; (3) to enforce Provider’s terms and conditions; (4) to protect the rights, privacy, safety or property of Provider, its affiliates, or others; and (5) to allow Provider to pursue available remedies or limit the damages that we may sustain.
11. Term & Termination.
- Term. The term of this Agreement commences on the date Recipient first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
- Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective immediately. Recipient forfeits any Service fees paid and remaining queries prior to termination if this Agreement is terminated by Provider for cause.
- Effects of Termination. The following provisions will survive termination of this Agreement: (1) any obligation of Recipient to pay for Services rendered before termination; (2) Sections 4, 6(E), 7, 9, 10(C), and 12 of this Agreement; and (3) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
12. Governing Law & Dispute Resolution. The laws of the State of California, U.S.A. govern this Agreement without regard to its conflicts of law principles. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered, rather than in court, by one arbiter of the American Arbitration Association chosen under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the above, the parties may seek and obtain court orders in Santa Clara County, California or the U.S. District Court for the Northern District of California for equitable relief against a breach or a threatened breach. Provider and Recipient agree that any and all disputes must be brought in the parties’ individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. By entering into this Agreement, the Recipient is agreeing to arbitration and that the Provider and Recipient are waiving the right to file a lawsuit, the right to trial by jury, and the right to participate in a class action or litigate on a class-wide basis.
- Notices. Provider may send notices pursuant to this Agreement to Recipient’s contact points listed in Recipient’s Account, and such notices will be deemed received two (2) days after they are sent. Recipient may send notices pursuant to this Agreement to firstname.lastname@example.org, and such notices will be deemed received two (2) days after they are sent.
- Amendment. Provider may amend this Agreement from time to time by posting an amended version on its website and sending Recipient written notice thereof. Such amendment will be deemed accepted and become effective (1) at the Recipients continued use of the Service at the beginning of the next monthly term, or (2) ten (10) days after such notice (the “Proposed Amendment Date”) unless Recipient first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of Recipient’s next monthly term following the Proposed Amendment Date (unless Recipient first terminates this Agreement pursuant to Section 10 herein). Recipient’s continued use of the Service following the effective date of an amendment will confirm Recipient’s consent thereto. This Agreement may not be amended in any other way except through a written agreement executed by authorized representatives of each party.
- Independent Contractors. The parties are independent contractors, and nothing in this Agreement will be construed as creating a joint venture or any relationship other than independent contractors. Neither party shall have the power to create any obligation or duty, express or implied, on behalf of the other.
- Customer Reference. Recipient agrees that that Provider may identify Recipient as a user of the Services and use Recipient’s logo in sales presentations, marketing materials, and press releases, as well as link Recipient’s logo to Recipient’s homepage, if one exists.
- No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit, written statement made by an authorized representative. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
- Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
- Assignment & Successors. Neither party may assign or transfer this Agreement or any of its Services, rights, or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
- DMCA Notices. Provider respects the intellectual property rights of others and strives to comply completely with copyright and other intellectual property laws and regulations. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website at http://www.copyright.gov/legislation/dmca.pdf, Provider will respond expeditiously to claims of copyright infringement. If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please notify Provider’s legal office of the alleged copyright infringement at email@example.com. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim is being infringed;
- Identification of the material that is claimed to be infringing and where it is located on the Site;
- Information reasonably sufficient to permit us to contact you, such as your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Copyright Compliance Officer at firstname.lastname@example.org.
- Compliance with Laws. Each party shall, at its own expense, comply with all laws, regulations, and other legal requirements that apply to it in connection with this Agreement. United States’ export control regulations may apply to the Services. Recipient agrees to comply with such laws, and Recipient agrees that no data, information, programs, or software resulting from the Services will be exported, directly or indirectly, in violation of these laws. Provider may terminate the Service at any time in order to comply with laws and regulations.
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
- Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter herein. Neither party has relied upon any such prior or contemporaneous communications.