These NXYZ API Terms of Service (the “Agreement”) describe your rights and responsibilities when accessing our publicly available application programming interfaces and related API documentation (collectively, the “APIs”). This Agreement is entered into by and between NXYZ, Inc. (“NXYZ”) and the entity or person accessing the APIs (“Licensee”).  This Agreement consists of the terms and conditions set forth below and any NXYZ ordering documentation, online sign-up, or subscription flow that references this Agreement (the “Order Form”).  If you are accessing or using the APIs on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company.

PLEASE REVIEW THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. ONCE ACCEPTED, THIS AGREEMENT WILL BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND NXYZ.  IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU SHOULD NOT ACCEPT THIS AGREEMENT OR OTHERWISE USE THE APIs.

1. ACCESS TO API.

   1. Right to Access API. Subject to Licensee’s compliance with this Agreement, NXYZ grants Licensee a non-exclusive, non-sublicensable, non-transferable license to access and use the API to (a) develop, reproduce and distribute applications or implementations that interoperate with the API (each an “Implementation”), and (b) display the data made available by NXYZ through the API (“NXYZ Data”) solely to end users via the Implementation. Licensee must undertake industry-standard precautions to protect NXYZ Data from being collected or scraped from Licensee’s Implementation (including incorporating restrictions against scraping, collection and harvesting of NXYZ Data in Licensee’s terms of service).
      

   2. Usage Restrictions. Licensee agrees that it will not, directly or indirectly: (i) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the APIs; (ii) attempt to probe, scan or test the vulnerability of the APIs, breach the security or authentication measures of the APIs without proper authorization or wilfully render any part of the APIs unusable; (iii) use or access the APIs to develop a product or service that is competitive with NXYZ’s products or engage in competitive analysis or benchmarking; (iv) transfer, distribute, resell, lease, (sub)license, or assign the APIs or NXYZ Data or otherwise offer the APIs or NXYZ Data on a standalone basis; (v) introduce any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature through the APIs; (vi) interfere with or disrupt the APIs or the servers or networks providing the APIs; (vii) use the APIs for any activities where the use or failure of the APIs could lead to death, personal injury, or environmental damage; or (viii) otherwise use the APIs or NXYZ Data in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.
      

   3. Usage Limitations.  NXYZ may set and enforce limits on Licensee’s use of the APIs (e.g. limiting the number of API requests that Licensee may make or the number of users Licensee may serve), in our sole discretion.  Licensee warrants and covenants that Licensee will not attempt to circumvent any such limitations documented with each API. 

2. FEES

   1. Fees.  To the extent the APIs are made available for a fee, Licensee agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Licensee’s fees are exclusive of all taxes, and Licensee is responsible for paying any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of NXYZ. Except as expressly provided in this Agreement, payments are non-refundable and non-creditable and payment obligations non-cancellable.  All undisputed fees due are payable in United States dollars, unless otherwise agreed to between the parties in writing.
      

   2. Credit Card Payment Terms. If Licensee elects to pay via credit card, then Licensee is responsible for either (a) enabling auto-recharge on Licensee’s payment instrument or (b) ensuring that Licensee’s payment instrument has a sufficient positive balance to cover all fees due.  If, for any reason, Licensee has a negative balance on Licensee’s payment account, then NXYZ reserves the right to suspend access to the APIs until all fees are paid in full.
      

   3. Invoicing Payment Terms. If Licensee elects to receive invoices and NXYZ approves Licensee for the same, then invoices will be sent to via email in accordance with the Order Form.  Except as otherwise set forth in an Order Form, Licensee will make all of the undisputed fees hereunder within fifteen (15) days of the date of the invoice.  If Licensee is overdue on any payment of undisputed fees and fails to pay within ten (10) business days of a written notice, then NXYZ may assess, and Licensee agree to pay a late fee of either 1.5% per month, or the maximum amount allowable by applicable law, whichever is less. 
      

   4. Disputes.  Licensee must notify NXYZ in writing of any good-faith invoice dispute within thirty (30) days of the applicable billing date and reasonably cooperate with NXYZ in resolving any dispute. If the parties are unable to resolve a dispute within ten (10) days of Licensee’s notice, each party will have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any provision in this Agreement that would limit seeking these remedies on account of a payment dispute. For clarity, any undisputed amounts must be paid in full in accordance with this Section.
      
      

3. OWNERSHIP; CONFIDENTIALITY

   1. Ownership; Reservation of Rights. Except for the limited rights granted hereunder, NXYZ exclusively owns all right, title and interest in and to the APIs, NXYZ Data, and Systems Data.  “System Data” means data collected by NXYZ regarding the APIs that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the APIs.
      

   2. Nondisclosure and Use Restrictions. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Without limiting Section 3.2, the Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except to perform its obligations hereunder) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party.
      

   3. Feedback.  Licensee may from time to time provide NXYZ suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the APIs.  NXYZ will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.  NXYZ will have the full, unencumbered right to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services without any obligation to compensate or reimburse Licensee.
      
      

4. DISCLAIMERS.

THE API AND ALL NXYZ DATA IS PROVIDED ON AN “AS-IS” BASIS AND NXYZ DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL NXYZ HAVE ANY LIABILITY ARISING FROM THE USE OF THE API, NXYZ DATA, INFORMATION DERIVED THEREFROM OR ANY ACTIONS TAKEN IN RELIANCE UPON THE FOREGOING.

5. INDEMNIFICATION. 

Licensee agrees to defend and indemnify NXYZ from and against any third-party claims and liabilities to the extent resulting from: Licensee’s Implementations, Licensee’s breach of this Agreement or Licensee’s unauthorized use of NXYZ Data. Licensee must not settle any claim without NXYZ’s prior written consent if the settlement would require NXYZ to admit fault, pay amounts that Licensee must pay under this Agreement, or take or refrain from taking any action. NXYZ may participate in a claim through counsel of its own choosing at its own expense and Licensee and NXYZ will reasonably cooperate on the defense of any such claim.

6. LIMITATION OF LIABILITY. 

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL NXYZ BE LIABLE TO LICENSEE FOR (A) ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE GREATER OF (I) ONE THOUSAND DOLLARS OR (II) THE AMOUNTS PAID BY LICENSEE DURING THE SIX MONTHS PRECEDING THE INCIDENT OR CLAIM, OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING LOST PROFITS, EVEN IF NXYZ HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

7. TERMINATION

   1. Term.  This Agreement will commence on the date Licensee first accepts and agrees to this Agreement and continues until terminated in accordance with Section 7.2.
      

   2. Termination.  Each party may terminate this Agreement for convenience by providing the other party with at least thirty (30) days prior written notice. Notwithstanding the preceding sentence, if there are any Order Form(s) in effect, this Agreement will not terminate until all such Order Form(s) have expired or have been terminated in accordance with the terms therein.  Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. 
      

   3. Survival.  Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, usage restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.  
      
      

8. GENERAL. 

   1. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in Santa Clara, CA or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts. 
      

   2. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the other party’s advanced written consent, except that each party may assign this Agreement without consent in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be void.
      

   3. Notices. Any notice or communication under this Agreement must be in writing.  Licensee must send any notices under this Agreement (including breach notices and warranty and indemnity claims) to NXYZ, in English to legal@n.xyz. NXYZ may send notices to the email addresses on Licensee’s account or, at NXYZ’s option, to Licensee’s last-known postal address. NXYZ may also provide operational notices regarding the APIs or other business-related notices through conspicuous posting of the notice on NXYZ’s website. 
      

   4. Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
      

   5. Publicity.  Licensee agrees that NXYZ may refer to Licensee’s name and trademarks in NXYZ’s marketing materials and website, including but not limited to displaying Licensee’s logo, solely for the purpose of identifying Licensee as a customer of NXYZ.
      

   6. Amendments; Waivers.  NXYZ may update the terms and conditions of this Agreement (which may include changes pricing and plans) from time to time with prior notice to Licensee in accordance with Section 8.3.  No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.
      

   7. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
      

   8. No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. 
      

   9. Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the APIs or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.