These API Terms and Conditions (the “Terms and Conditions”) are entered into by and between you (the “Licensee”) and The Coupon Bureau LTD, a non-profit organization with a principal place of business located at 12655 N Central Expressway Suite 700 Dallas, Tx 75243 (“TCB”) . Licensee and TCB are referred to in this Terms and Conditions individually as a “Party” and collectively as the “Parties”.
Please read these Terms and Conditions carefully before you start to use the API (as defined below). By using the API or by clicking accept or agree to these Terms and Conditions, you accept and agree to be bound and abide by these Terms and Conditions. If you do not want to agree to these Terms and Conditions, you must not use the API.
TCB is the sole and exclusive legal and beneficial owner of the entire right, title and interest in the Application Program Interface (the “API”) and desires to license the API to Licensee. The Licensee desires to obtain a license to use the API for the purposes of electronically accessing and using TCB’s services for the redemption of offers, coupons, discounts, incentives or other content and material that may be redeemed by consumers from Licensee’s point of sale (“POS”) systems (the “Permitted Use”), subject to the terms and conditions of these Terms and Conditions. TCB is willing to grant Licensee a limited license to the API pursuant to the terms and conditions contained herein.
1. DEFINITIONS. Capitalized terms have the meanings set forth or referred to in this Section 1.
“Action” has the meaning set forth in Section 8.1.
“API” has the meaning set forth in the Preamble.
“Confidential Information” has the meaning set forth in Section 9.1.
“Controlled Technology” has the meaning set forth in Section 10.
“Disclosing Party” has the meaning set forth in Section 9.1.
“Documentation” means user manuals, technical manuals and any other materials provided by TCB, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the API.
“Force Majeure Event” has the meaning set forth in Section 11.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Keys” has the meaning set forth in Section 2.7.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Licensee” has the meaning set forth in the Preamble.
“Losses” has the meaning set forth in Section 8.1.
“Party” has the meaning set forth in the Preamble.
“Permitted Use” has the meaning set forth in the Preamble.
“Personal Information” means any information that a Party has collected or otherwise maintains or has in its possessions that identifies or can be used to identify an individual consumer, including, but not limited to names; addresses; telephone numbers; email addresses; user identification and account access credentials, passwords, PINs, and security question answers; financial account numbers; and geolocation information. For the avoidance of doubt, Personal Information shall include, but not be limited to, all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act (15 United States Code §6801 et seq.).
“Publishable Keys” has the meaning set forth in Section 2.7.
“Receiving Party” has the meaning set forth in Section 9.1.
“Representatives” has the meaning set forth in Section 8.1(a)(i).
“Secret Keys” has the meaning set forth in Section 2.7.
“TCB” has the meaning set forth in the Preamble.
“TCB Indemnitee” has the meaning set forth in Section 8.1.
“Term” has the meaning set forth in Section 5.1.
“Terms and Conditions” has the meaning set forth in the Preamble.
1. LICENSE GRANTS AND RESTRICTIONS.
1.1 License Grant. Subject to the terms and conditions of these Terms and Conditions, and conditioned on Licensee’s compliance therewith, TCB hereby grants to Licensee a non-exclusive, non-sublicensable, and non-transferable, limited license to use the API and any associated Documentation during the Term solely to the extent necessary for the Permitted Use.
1.2 Use Restrictions. Except as these Terms and Conditions expressly permits Licensee shall not, and shall not permit any other person to:
(a) use (including make any copies of) the API or Documentation beyond the scope of the license granted under these Terms and Conditions;
(b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any API;
(c) subject to the exception set forth in Section 2.3, rent, lease, lend, sell, sublicense, assign, distribute, publish,
transfer, or otherwise make available the API, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
(d) reverse engineer, disassemble, decompile, decode, or adapt the API, or otherwise attempt to derive or gain access to the source code of the API, in whole or in part;
(e) distribute, bypass, or breach any security device or protection used for or contained in the API;
(f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the API or Documentation;
(g) use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable Law; or
(h) use the API for purposes of: (a) benchmarking or competitive analysis of the API; (b) developing, using or providing a competing software product or service; or (c) any other purpose that is to TCB’s detriment or commercial disadvantage.
1.3 Integration of API. Notwithstanding the foregoing, Licensee may incorporate the API into its own software products and services provided to end users solely for the Permitted Use, whether offered on a software-as-a-service basis or as integrated into a stand-alone software offering.
1.4 Responsibility for Use of API. Licensee is responsible and liable for all uses of the API and Documentation through access thereto provided by Licensee, directly or indirectly. Without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the API and Documentation by any person to whom Licensee may provide access to or use of the API and/or Documentation, whether such access or use is permitted by or in violation of these Terms and Conditions.
1.5 Support and Maintenance. Licensee acknowledges that TCB has no responsibility for providing Licensee with any support, updates, upgrades, or other enhancements for, and that TCB is under no obligation to create any updates, upgrades, or enhancements to, the API.
1.6 Changes. Notwithstanding the foregoing, TCB may, from time to time, at its sole discretion, modify the API, permitted API calls, its databases, the permitted uses under this License Terms and Conditions, any of the benefits and/or features provided through or in connection with the API at any time with or without notice to TCB. The Parties agree and acknowledge that the foregoing modifications may require TCB to make changes to its products and services to continue to be compatible with, or interface with, the API or to access or use TCB’s products and services available in or through the API.
1.7 Keys. In order to use the API, TCB may issue one or more unique API keys for use with the API in order to perform transactions or obtain certain information through the API (“Keys”). Such keys may be publishable (“Publishable Keys”) or should be kept secret (“Secret Keys”). Keys are used to identify Licensee and Licensee’s end users. Licensee shall not share, sell, transfer, sublicense, or otherwise disclose the Keys to any third person. Licensee is solely responsible for securing Secret Keys issued to it, and solely responsible for all activities that occur using the Licensee’s Secret Keys.
2. MONITORING AND ENFORCEMENT.
2.1 Monitoring. Licensee agrees and acknowledges that TCB may (but is not obliged to) monitor and/or audit Licensee’s and Licensee’s end users’ use and activities of the API. Licensee will not seek to block or otherwise interfere with TCB’s monitoring or audit, and TCB may use technical means to overcome any methods Licensee may use to block or interfere with such monitoring or audit.
2.2 Corrective Action. Without limiting any other term in these Terms and Conditions, if TCB, in its sole discretion, reasonably believes that Licensee has breached these Terms and Conditions or that Licensee or its end users have engaged in fraudulent activity, TCB may take any and all steps it deems appropriate, including issuing a warning, conducting an investigation, or suspending Licensee’s license under these Terms and Conditions or the use and validity of any Keys. In addition to any other available remedies, TCB may, at its sole discretion, seek specific performance, injunctive relief, or legal fees. TCB reserves the right to take other corrective action as TCB sees fits in the event that TCB receives complaints from Licensee’s end users about its products and services related to the use of the API or Licensee’s actions related to the same. Licensee shall require its users to comply with all applicable Laws.
3. INTELLECTUAL PROPERTY RIGHTS.
3.1 Retention of Rights. Licensee acknowledges and agrees that the API and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the API or Documentation under these Terms and Conditions, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions, and restrictions, under these Terms and Conditions. TCB and its affiliates and service providers reserve and shall retain their entire right, title, and interest in and to the API and all Intellectual Property Rights arising out of or relating to the API, including all improvements, enhancements, modifications, and derivative works thereto, except as expressly granted to the Licensee in these Terms and Conditions. Licensee shall safeguard the API (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify TCB if Licensee becomes aware of any infringement of TCB’s Intellectual Property Rights in the API and fully cooperate with TCB in any legal action taken by TCB to enforce its Intellectual Property Rights.
3.2 No Challenges. Licensee agrees not to challenge, directly or indirectly, any right or interest of TCB in the API, nor the validity or enforceability of TCB’s rights under applicable Law. Licensee agrees not to directly or indirectly register, apply for registration, or attempt to acquire any legal protection for any of the API or any proprietary rights in the API or to take any other action which may adversely affect TCB’s rights or interest in the API in any jurisdiction.
4. TERM; TERMINATION.
4.1 Term. These Terms and Conditions and the license granted hereunder shall remain in effect indefinitely until terminated as set forth herein (the “Term”).
4.2 Termination for Convenience. Either Party may terminate these Terms and Conditions upon thirty (30) days’ notice to the other Party.
4.3 Termination for Breach. Either Party may terminate these Terms and Conditions, effective upon written notice to the other Party, if other Party, materially breaches these Terms and Conditions and such breach: (a) is incapable of cure; or being capable of cure, remains uncured thirty (30) days after non-breaching Party provides written notice thereof.
4.4 Termination for Bankruptcy. Either Party may terminate these Terms and Conditions, effective immediately, if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
4.5 Effect of Termination. Upon expiration or earlier termination of these Terms and Conditions for any reason, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the API, Keys, and Documentation.
4.6 Survival. The expiration or termination of these Terms and Conditions for any reason will not release either party from any liabilities or obligations set forth herein which (a) the parties have expressly agreed will survive any such expiration or termination; or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination. In addition to the foregoing, upon termination or expiration of these Terms and Conditions, Section 1, Section 4, this Section 5.6, Section 6, Section 7, Section 8, Section 9, Section 10, and Section 12 and the Parties’ respective obligations thereto shall survive such expiration or termination.
5. REPRESENTATIONS AND WARRANTIES.
5.1 Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations under these Terms and Conditions; (c) the execution of these Terms and Conditions by its representative whose signature is set forth at the end of these Terms and Conditions has been duly authorized by all necessary corporate or organizational action of such Party; (d) when accepted by Licensee, these Terms and Conditions will constitute the legal, valid, and binding obligation of each Party, enforceable against each Party in accordance with its terms; (e) there is no pending or threatened litigation that would have a material adverse impact on the Party’s performance under these Terms and Conditions.
5.2 DISCLAIMER OF WARRANTIES. THE API AND DOCUMENTATION ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TCB, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE API AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TCB PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE API WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY TCB ITS AFFILIATES AND THEIR RESPECTIVE LICENSORS, AGENTS, EMPLOYEES, AND SERVICE PROVIDERS, SHALL CREATE A WARRANTY, AND LICENSEE IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. THIS DISCLAIMER OF WARRANTIES IS AN ESSENTIAL CONDITION OF THESE TERMS AND CONDITIONS.
6. LIMITATION OF LIABILITY. To the fullest extent permitted under applicable law:
(a) In no event will TCB or its affiliates, or any of its or their respective licensors or service providers, be liable to Licensee or any third party for any use, interruption, delay or inability to use the software, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, system incompatibility or provision of incorrect compatibility information or breaches in system security, or for any consequential, incidental, indirect, exemplary, special, or punitive damages, whether arising out of or in connection with this agreement, breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not TCB was advised of the possibility of such damages.
(b) In no event will TCB’s and its affiliates’, including any of its or their respective licensors’ and service providers’, collective aggregate liability under or in connection with this agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total one hundred dollars ($100).
7.1 TCB Indemnification. TCB shall indemnify, defend and hold harmless Licensee and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and assigns (each, a “Licensee Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) incurred by the Licensee Indemnitee arising out of or relating to any claim, suit, action, or proceeding by a third-party (other than an affiliate of Licensee Indemnitee) (each, an “Action”) to the extent that such Losses arise out of or relate to any allegation that the API actually does or threatens to infringe, misappropriate, or otherwise violate any United States Intellectual Property Right or other right of a third-party, provided, however, that TCB shall have no liability or obligation for any Action or Losses that arise out of or result from any: (a) alteration or modification of the API by any third party or by or on behalf of Licensee; (b) use of the API by Licensee pursuant to these Terms and Conditions in combination with any apparatus, hardware, software, or service not provided, authorized, or approved by TCB; (c) access to or use of the API that is expressly prohibited by these Terms and Conditions or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in these Terms and Conditions or the Documentation or in any manner contrary to TCB’s instructions; (d) any data provided by Licensee or any instruction, information, designs, specifications, or other materials provided by Licensee to TCB; (e) any breach of these Terms and Conditions by Licensee or noncompliance herewith by any of its users or personnel; or (f) violation of any applicable law by Licensee or any of its personnel or users.
7.2 Licensee Indemnification. Licensee shall indemnify, defend and hold harmless The Coupon Bureau and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and assigns (each, a “TCB Indemnitee”) from and against any and all Losses incurred by a TCB Indemnitee in connection with any Action by a third-party (other than an affiliate of a TCB Indemnitee) to the extent that such Losses arise out of or relate to any allegation:
(a) of or relating to any of the events described in 8.1(a) through 8.1(f) have occurred;
(b) of or relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under these Terms and Conditions;
(c) of or relating to the use of Licensee’s Secret Keys, including any transactions performed or information obtained through the API using Licensee’s Secret Keys; or
(d) of or relating to negligence, abuse, misapplication, misuse, or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the API or Documentation or otherwise in connection with these Terms and Conditions.
7.3 Indemnification Procedure. The Party seeking indemnification (as the “Indemnified Party”) shall promptly notify the other Party (as the “Indemnifying Party”) in writing of any Action for which it believes it is entitled to be indemnified pursuant to this Section 8. The Indemnified Party shall cooperate with the Indemnifying Party at Indemnifying Party’s sole cost and expense. The Indemnifying Party shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s sole cost and expense. The Indemnifying Party’s failure to perform any obligations under this Section 8.3 will not relieve the Indemnifying Party of its obligations under this Section 8 except to the extent the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its choosing. In the event the Indemnifying Party does not, within fifteen (15) days after it receives written notice of an Action from the Indemnified Party, accept in writing the defense of, and assume all responsibility for, such Action as provided above, then the Indemnified Party will have the right to defend against, negotiate, settle, or otherwise deal with the Action in such manner as the Indemnified Party deems appropriate, in their sole discretion, and the Indemnifying Party will be entitled to indemnification therefore from Licensee hereunder.
8.1 Confidential Information. In connection with these Terms and Conditions each Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) Confidential Information. Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing: (a) the API and Documentation are the Confidential Information of TCB; (b) the terms of these Terms and Conditions are the Confidential Information of TCB; (c) the Personal Information collected by a Party from an individual, if any, is the Confidential Information of that Party; and (d) notwithstanding the foregoing, all information obtained by Licensee through the API is the Confidential Information of TCB.
8.2 Exclusions and Exceptions. Other than Personal Information, Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms and Conditions; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms and Conditions; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information.
8.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall during the Term and for five (5) years following the expiration or termination of these Terms and Conditions:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms and Conditions;
(b) except as may be permitted under the terms and conditions of Section 9.5, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms and Conditions; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
8.4 Trade Secrets. Notwithstanding any other provisions of these Terms and Conditions, the Receiving Party’s obligations under Section 9.3 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
8.5 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment
9. EXPORT REGULATIONS. Licensee shall not itself, or permit any other person to, export, re-export, or release, directly or indirectly, any software, documentation, technology, or other technical data, or any products that include or use any of the foregoing, the export, re-export, or release of which to certain jurisdictions or countries is prohibited or requires an export license or other governmental approval, under any Law, including the US Export Administration Act and its associated regulations (“Controlled Technology”) to any country, jurisdiction, or person to which the export, re-export, or release of Controlled Technology (a) is prohibited by applicable Law; or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).
10. FORCE MAJEURE. In no event will TCB be liable or responsible to Licensee, or be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions, when and to the extent such failure or delay is caused by any circumstances beyond TCB’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of these Terms and Conditions, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate these Terms and Conditions if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, TCB shall give prompt written notice to Licensee stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
11.1 Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to these Terms and Conditions.
11.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Neither Party shall make any public statement regarding the use of the API that suggests any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties.
11.3 Notices. Except as otherwise expressly set forth in these Terms and Conditions, any notice, request, consent, claim, demand, waiver, or other communication under these Terms and Conditions will be in writing and, if addressed to the Licensee, addressed the addresses set forth in Licensee’s account and, if to TCB, addressed to 12655 N Central Expressway Suite 700 Dallas, Tx 75243. Notices sent in accordance with this Section 12.3 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) three (3) days after the date mailed by certified or registered mail, return receipt requested, postage prepaid. Notwithstanding the foregoing, day-to-day communications and notifications under these Terms and Conditions (excluding notices of default, renewal, termination, and indemnification) may be made through other reliable means, including through email.
11.4 Interpretation. For purposes of these Terms and Conditions: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Terms and Conditions as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms and Conditions: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices to these Terms and Conditions; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend these Terms and Conditions to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of these Terms and Conditions to the same extent as if they were set forth verbatim herein.
11.5 Headings. The headings in these Terms and Conditions are for reference only and do not affect the interpretation of these Terms and Conditions.
11.6 Entire Terms and Conditions. These Terms and Conditions constitutes the sole and entire agreement of the parties with respect to the subject matter of these Terms and Conditions and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
11.7 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under these Terms and Conditions without TCB’s prior written consent. Any purported assignment, delegation or transfer in violation of this Section 12.7 is void. These Terms and Conditions is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
11.8 No Third-Party Beneficiaries. These Terms and Conditions is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
11.9 Changes to These Terms and Conditions. We may revise and update these Terms and Conditions from time to time in our sole discretion. If we make material changes to these Terms and Conditions, we will notify you by email to the primary email address specified in your account. You are responsible for ensuring that we have an up-to-date active and deliverable email address for you. All changes are effective immediately when we post them, and apply to all access and use of the API thereafter. Your continued use of the API following the posting of revised Terms and Conditions means that you accept and agree to the changes.
11.10 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms and Conditions, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms and Conditions shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.11 Severability. If any provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify these Terms and Conditions so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.12 Governing Law; Jurisdiction. These Terms and Conditions is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to these Terms and Conditions or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Dallas and Dallas County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
11.13 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 2.2 (Use Restrictions), Section 4 (Intellectual Property Rights), Section 8 (Indemnification), or Section 9 (Confidentiality), of these Terms and Conditions would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
11.14 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to these Terms and Conditions, the prevailing Party shall be entitled to recover its reasonable attorneys, expert witness and accountants’ fees and out-of-pocket expenses, and court costs from the non-prevailing Party.
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