LICENSE AND SERVICES AGREEMENT
1.1. API: The Peer5 Application Programming Interface and its related documentation, data, code, software, widget, and other materials provided by Peer5 with the API, as updated from time to time.
1.2. Application: the software application, website or other interface that you develop, own or operate to interact with the API.
1.3. Users: end-users of your Application.
1.4. Services: Content delivery services based on 3rd party CDNs and a p2p network operated by Peer5.
2. Grant of License
2.1.Subject to your acceptance of this Agreement, and in accordance with the terms and conditions herein, we grant you one (1) non-exclusive, non-assignable, non-transferable, revocable, limited license (the "License") to access and use the API, in accordance with the instructions provided herein and solely for your own business, for the following limited purposes:
2.1.1. to enable your Application to interact with Peer5 to facilitate your own or your Users’ use of the API.
2.2.The terms in this Agreement shall remain in effect from the date of your first use of the API and until terminated by Peer5 or you in accordance to the provisions set out in this Agreement, and shall govern any upgrades provided by Peer5 that replace or supplement our API, unless a separate license is accompanying such an upgrade, in which case the terms of the latter license shall govern.
2.3.If you are not of any legal status which allows you to form a binding contract with Peer5, you cannot enter into this Agreement with Peer5 and no License shall be granted to you.
3.1.In connection with your use of the API, and without limiting any of the other obligations under this Agreement or applicable law, you shall not, and shall not permit others to:
3.1.1. use the API for any purposes other than those expressly set forth in this Agreement;
3.1.2. modify, decompile, reverse-engineer, disassemble, translate or otherwise attempt, directly or indirectly, to obtain or create source code or know-how in or underlying the API or any portion thereof;
3.1.3. interfere with, modify, disrupt or disable features or functionality of the API;
3.1.4. use, sell, rent, lease, sublicense, distribute, copy, duplicate, create derivative works of or otherwise reproduce all or any part of the API;
3.1.5. engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Peer5, its services or the API, and any such representation, warranty or guarantee concerning Peer5 made by you shall be considered a material breach of this Agreement;
3.1.6. make any agreements, covenants, representations, warranties or guarantees concerning Peer5, its services or the API that are inconsistent with or in addition to those contained in this Agreement;
3.1.7. allow any access to or use of the API by anyone other than your authorized users.
3.1.8. use, install, access, display, or run the API or any part thereof, as part of any illegal activity, or not in compliance with applicable law in the relevant jurisdictions, and including, without limitation copyright protection rules and regulations (including, but not limited to, DMCA Rules).
3.1.9. use of the API to store, post, display, transmit, advertise or otherwise make available child pornography. Peer5 will, as required by law, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the Services.
3.2. You hereby acknowledge and understand that upon any breach of the terms of this Agreement, including but not limited to the restrictions set above, you may be subject to prosecution and liable for damages.
4.1. Peer5 retains ownership of all intellectual property rights, interest and title in the API, including its software and code, and /or any updates, upgrades, enhancements, derivatives, improvements, extensions, and modifications thereto, in any copies thereof and in its documentation. All rights, title and interest in and to the API and any trademarks, trade names, copyrights, patents, patentable inventions, and any and all other intellectual property rights embodied in or in connection therewith, are owned solely and exclusively by Peer5.
4.2. Except as expressly set forth herein regarding your right to use the API in accordance with the terms of this Agreement, you are granted no rights, in or to the API, or any intellectual property rights related thereto, in any way whatsoever, including by implication, estoppel, or otherwise.
5. Billing and Payment
5.1. Peer5 shall invoice you based upon the total amount of Gigabytes/Terabytes transferred and all other services ordered multiplied by the price per Gigabyte/Terabyte or the price for the Services ordered at the pricing schedule valid at the time of billing, as set forth above and as calculated herein. Your usage of the Services, including, but not limited to ingress and egress of traffic related to the Services, shall be measured by Peer5 and you will be billed for actual bandwidth used or your minimum commitment, whichever is higher. If you transfer more than the minimum committed amount of Gigabytes or funds in any particular month, then Peer5 will bill you for the difference between the actual usage (as calculated in this paragraph) minus the minimum monthly commitment at the Usage Charge per Gigabyte/Terabyte as specified above.
As set forth above, you have purchased a minimum committed amount of Gigabyte/Terabyte transfer for each month, or another Peer5 service, for the specified term and, unless agreed to otherwise by Peer5 in writing, will prepay the monthly committed amount to Peer5 on or before the Service Commencement Date specified above and each month thereafter.
5.2. If your billing information and payment source is invalid, if charges billed to you are declined or not paid or if you fail to pay charges for a paid version of the License when due, your access to the API may be downgraded, suspended or cancelled, at our sole discretion. Please note, that until paid in full, all past due amounts will bear an additional charge of the lesser of 1.5% per month or the maximum amount permitted under applicable law.
7.1. You agree and acknowledge that: (a) the Services and the API may not work entirely or properly with all operating systems or software language; and that (b) the performance of the API and the Services may be affected or interfered with by numerous factors outside Peer5's control, such as maintenance performance, failures in internet connectivity, malfunctions in the system and/or failures in the provision of third party services.
7.2. Peer5 reserves the right to alter, remove, change, suspend or disable access to our API at any time without notice. In no event will we be liable for the removal of or disabling of access to our API.
7.3. We do not warrant that the use of the API or the Services will be uninterrupted, error-free or completely secure. You acknowledge that there are certain risks inherent in using the API that could result, inter alia, in interruptions to the viewing process of your Application.
7.4. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE API AND THE SERVICES ARE PROVIDED "AS IS," “WHERE IS”, "AS AVAILABLE," AND "WITH ALL FAULTS," ARE USED ONLY AT YOUR SOLE RISK, TO THE FULLEST EXTENT PERMISSIBLE BY LAW. PEER5 DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, REGARDING THE USAGE OF THE API AND THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES AS TO FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, RESULTS, ACCURACY, COMPLETENESS, ACCESSIBILITY, COMPATIBILITY, SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, OR LACK OF VIRUSES. IF APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF SOME OR ALL OF THE ABOVE IMPLIED WARRANTIES TO APPLY TO YOU, THE ABOVE EXCLUSIONS WILL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
8. Limitations on Liability and Remedies
PEER5's ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY IN CONNECTION TO YOUR USE OF THE API AND THE SERVICES IS TO DISCONTINUE YOUR USE. PEER5 AND ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SERVANTS OR AGENTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE API OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE WITH PEER5'S API AND/OR SERVICES. THESE EXCLUSIONS FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF PEER5 HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, PEER5'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. YOU HEREBY ACKNOWLEDGE AND AGREE THAT WITHOUT THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY, PEER5 WOULD NOT BE ABLE TO OFFER THE API AND/OR SERVICES NOR GRANT YOU THE LICENSE.
YOU AGREE TO INDEMNIFY AND HOLD PEER5 AND ITS DIRECTORS, OFFICERS, EMPLOYEES, ADVISORS, SUBSIDIARIES, AFFILIATES AND AGENTS, HARMLESS FROM AND AGAINST ALL LOSS, DAMAGES, EXPENSES, CLAIMS, DEMANDS AND LIABILITIES INCURRED OR SUFFERED BY PEER5 ARISING OUT OF (A) ANY REPRESENTATION MADE BY YOU TO THIRD PARTIES CREATING ANY OBLIGATION OR LIABILITY REGARDING PEER5 API AND/OR SERVICES WHICH PEER5 HAS NOT SPECIFICALLY ASSUMED OR APPROVED UNDER THIS AGREEMENT, (B) YOUR BREACH OF ANY TERM OR CONDITION OF THIS AGREEMENT OR ANY DOCUMENTS IT INCORPORATES BY REFERENCE, OR (C) YOUR FAILURE TO COMPLY WITH ALL APPLICABLE LAWS, REGULATIONS, ORDINANCES AND TREATY REQUIREMENTS, RELATING, AMONG OTHERS, TO DATA PROTECTION, PRIVACY RIGHTS, AND COPYRIGHTS.
10.1. This Agreement will terminate automatically without notice if you fail to comply with any of its terms. Peer5 reserves the right to terminate this Agreement or suspend or discontinue your access to the API, or any portion or feature thereof, for any or no reason and at any time with or without notice to you and without liability to you.
10.2. All of Peer5's sales are final and binding for the term the Parties agree to and shall automatically renew at the intervals described in this Agreement unless canceled at least 30 days before the Service End Date with written notice to Peer5. You hereby agree and understand that this is a commercial transaction and there is no cooling off period. Any and all of Peer5's service(s) are provided for a minimum term commitment as agreed to by the Parties in this Agreement and all service fees, for the entire term, are due and payable to Peer5 in advance and at the point of purchase or signing of this Agreement. Peer5, in its sole discretion, may allow you to pay for Peer5's service(s) in monthly installments or other intervals.
10.3. Without limiting any other remedies, Peer5 may, without notice to either you or the User, temporarily suspend a specific User use of the API, temporarily or indefinitely suspend a User's access, if such User has breached any applicable end-users terms or any other Peer5’s policies, has engaged in improper or fraudulent activity in connection with Peer5, or has performed any other acts that may cause legal liability or financial loss to Peer5 or any other Users.
11.1. Entire Agreement. This Agreement comprises the entire agreement between you and Peer5 relating to the API and the Services. Any amendments to this agreement shall be done in writing and signed by both parties.
11.2. Severability. If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention, and all remaining provisions of this Agreement shall remain in full force and effect.
11.3. Assignment. Peer5 may assign this agreement at any time to the successor in interest in connection with a merger, consolidation or other corporate reorganization. You may not assign this agreement with the prior written consent of Peer5.
11.4. Choice of Law. This Agreement shall be exclusively governed by and construed in accordance with the laws of the State of Israel, without regard to its conflict of law provisions. You agree that all such disputes shall be brought exclusively in the appropriate courts of Tel Aviv, Israel.
11.5. Notices. If you have any questions regarding this Agreement please direct your questions to: firstname.lastname@example.org