Terms & Conditions (API)
API License Agreement / Givkwik Developer Program
Givkwik, Inc., a Delaware corporation (“Givkwik,” “API Licensor” or “us”) is making its Application Programming Interface and related tools (“API”) available to developers under the license provided for in this limited license agreement (“API License Agreement”). This is part of our initiative to allow talented, qualified application developers who are interested in using technology to make a positive social impact (i) to create Your own applications and tools (“Your Applications”) that can access, use and interact with our Site and Givkwik Content or (ii) to enhance, by means of Your Applications, the services that we make available through our Site. “Givkwik Content” means content contained in our databases (our “Databases”) that we make available to API Licensees for these purposes. References to our “Site” mean our website, www.Givkwik.com, or any other website or mobile device or other user application we may own or operate for purposes of providing our services. This API License Agreement (i) applies to You from and after date of its first publication, regardless of when You first began to use our API and (ii) applies retroactively to the date when you first began to use our API, it being understood that your continued use of our API from and after the date of its first publication constitutes an express representation by You that Your prior use of our API did not result in a breach of the terms expressed herein.
General.
This is a legal agreement that defines, explains and limits Your rights. This API License Agreement is a contract between us, as licensor hereunder, and each person (“API Licensee” or “You” (whether or not capitalized)) who uses any API owned by us and made available to such users as we may determine, as licensee hereunder.
Certain terms used in this API License Agreement have special definitions. They are fairly obvious, but generally are indicated by boldfacing the defined term (if your browser supports such boldfacing) and setting it within quote marks (“”), often in parentheses. Sometimes the definition is given when the term is first introduced, and sometimes after.
This API License Agreement incorporates by reference all Terms of Use, which You can, and as a condition to using our API must, read and agree to. “Terms of Use” means all terms & conditions, terms of use, terms of service, privacy policies, and other provisions pertaining to our Site and services, whether posted on our Site or otherwise made known to You.
We may modify this API License Agreement (including without limitation terminating, further restricting, or setting fees for the API License granted hereby and changing existing or adding new Terms of Use) at any time, for any reason or no reason, without notice, and without disclosing any reason therefor. You must, and You agree You will, read this API License Agreement each time You exercise Your rights hereunder or use our Site and if any terms have changed, You will comply with such changes.
This API License Agreement will be effective, as between any given API Licensee and us, and we may enforce this API License Agreement against each such API Licensee, as of, from and after the moment of Your first access, download, installation, copy and/or other use of the API. Our right to enforce this API License Agreement as against You and Your duty to comply with the terms and conditions of this API License Agreement are unconditional and perpetual unless expressly provided for otherwise in this API License Agreement.
If You do not want to, or do not agree to, be bound by this API License Agreement and each and all of its terms and conditions, or to any Incorporated Terms, Your only recourse is to not, and You may and must not, and we do not permit You to, use or access the Site or our services. If You do not agree to each and all of the terms of this API License Agreement.
We will be the sole arbiter in any question about the application of the terms of this API License Agreement. In the event of any discrepancy or dispute as to the meaning of a term, or between a provision in the API License Agreement proper and one in the Terms of Use, we will be the sole arbiter of the interpretation thereof.
1. Limited License.
1.1 Subject to the terms and conditions of this API License Agreement, Givkwik hereby grants to each API Licensee a limited license to use our API (“API License”) in accordance with this API License Agreement. The API License is (A) nonexclusive, (B) nontransferable, (C) non-sublicensable, (D) non-assignable, (E) revocable, and (F) further limited as provided herein. (a) Nonexclusive means, generally, that we can license our API to anyone else, even a API Licensee’s competitors). (b) Nontransferable means, generally, that You alone may use our API under Your API License, and may not transfer Your API License or any of the rights contained tin this API License Agreement rights to anyone else). (c) Non-sublicensable means, generally, that (except as permitted in this API License Agreement, You may not act as a licensor of Your limited rights contained in the API License and sub-license the API License to any third-party sub-licensee other than consistent with the sub-licensing provisions herein. (d) Nonassignable means, generally, that You may not assign, pledge, hypothecate or otherwise encumber, the API License or any of Your limited rights contained in the API License to anyone else). (e) Revocable means, generally, that we may determine to revoke Your API License at any time for any reason or no reason, with or without notice). (f) Limited means, generally, that your uses of our properties that we license to you hereunder is limited to the following permitted uses (“Permitted Uses”), in each case on the terms and subject to the conditions in this API License Agreement and conditioned on You being a United States resident and making Your Applications that use our API available only to your end users of Your Application and Your Permitted Service Providers and permitted sub-licensees and located in the United States (“Your Users”):
a. You may use our API to enable Your Applications to interact with our Databases that we make available to API Licensees in order to get information that You need to enable Your, or Your Users, to use our Site and our services via Your Application.
b. You may use our API to query our Databases, execute transactions, and access Givkwik Content, in each case consistent with Your API License.
c. You may use our API to make limited copies of Givkwik Content only to the extent necessary to a Permitted Use or for an activity necessarily incident to a Permitted Use on condition that You destroy/delete all such copies when no longer needed for the purpose for which they were created.
d. You may use our API to rearrange or reorganize Givkwik Content within Your Application consistent with this API License Agreement (including without limitation our Terms of Use);
e. You may use our API to display Givkwik Content consistent with this API License Agreement and with any usage requirements we may from time to time impose on the use and display of logos, trademarks, trade dress and other similar items.
We will provide each API Licensee a confidential identification code, a certificate, and a user ID so You can use the API. These are our property, and do not give a you any ownership rights or other rights not expressly provided for in this API License Agreement. We may revoke or terminate any of the same (1) if You share them with any third party (other than Permitted Service Providers, (2) if compromised by anyone, (3) if You use or access the Givkwik Content or our Databases or otherwise use our API in any way inconsistent with this API License Agreement as we determine in our sole discretion, or (4) for any other reason or no reason, as we may determine in our sole discretion. A “Permitted Service Provider” is any third party that provides services to You reasonably necessary in connection with the Permitted Uses and who is subject to all restrictions in this API License Agreement, including confidentiality provisions at least as restrictive as those set forth herein.
1.2 Our Databases and our Givkwik Content contained therein may only be used as expressly permitted in this API License Agreement. You may not use any alternative means of accessing our Databases including without limitation robots, spiders, scraping or other technology that can access, query, or otherwise use our Site, our Databases, or any Givkwik Content to obtain any information other than as permitted by this API License Agreement. You may not distribute, facilitate, enable or allow access or linking to our Site, our Databases or and Givkwik Content from any location or source other than Your Applications or your website. You will not permit or enable third parties to copy or obtain Givkwik Content from Your Applications or your website or to access our Databases in any unauthorized manner including without limitation by using robots, spiders, scraping or any other technology. After Your API License terminates, You will not use (or further in any way the use of) any alternative means such as robots, spiders, scraping or other technology to access, query, or use our Site, our Databases, or the Givkwik Content to obtain any information for any reason.
1.3 You will not allow or cause Givkwik Content to be disclosed to any third party (other than Permitted Service Providers) or enable Givkwik Content to be used other than with Your website or Your Applications consistent with the Permitted Uses. Without limiting the generality of anything, and notwithstanding anything to the contrary, in this API License Agreement, You will not (1) collect personally identifiable information of any Givkwik User without that user’s express permission and consistent with this API License Agreement; (2) modify, decompile or otherwise alter any Givkwik Content; (3) commercially exploit, copy, store or cache Givkwik Content, other than as permitted by this API License Agreement; or (4) otherwise use or access our Databases or Givkwik Content inconsistent with the terms of this API License Agreement. A “Givkwik User” means a person that has registered a user account on our Site or any other person that uses our services or accesses our Site. Your use of our API and any Givkwik Content and access to our Databases requires certification (“Certification”) by us (or our designee) of Your technology in accordance with our security and stability protocols and of Your display and other use of Givkwik Content in accordance with this API License Agreement. You are and will be responsible for all costs associated with Certification and any modification necessary to meet the Certification criteria. Post-Certification modifications of Your website, Application, or other web-enabled application with which You use our API, or use or display Givkwik Content, are subject to re-Certification. Failure by You to obtain and maintain Certification is cause for termination of Your API License.
1.4 All new Givkwik User registrations will take place on the Givkwik Site only. You will not use our API to register new Givkwik Users. In addition, all Givkwik User use preferences, registration preferences, and privacy preferences will be set by the Givkwik User directly on our Site, and You will not enable Givkwik Users to set any Givkwik User preferences on Your Site or Your Application or otherwise by means of the API.
1.5 API Licensor may monitor and audit Your Application and Your activities relating to your use of API License. You will not block or interfere with any such monitoring or auditing and if you do you hereby agree that API Licensor may use all lawful means, including without limitation such technical means as it may determine to be necessary to circumvent and overcome any such blocking or interference. We may request, and you will promptly supply, all documents and information concerning your use of the API License, and you will grant API Licensor access to your servers for this purpose.
1A. API License Fees.
All fees, royalties, and other compensation to be paid by any API Licensee for its API License shall be as provided for in each such API Licensee’s application for an API License by which we approve, in our sole discretion, to grant any API License.
2. User Data.
2.1 Any Givkwik User information gathered by You will be limited to information reasonably necessary to perform Your obligations under this API License Agreement or facilitate any Permitted Uses. You will neither use, nor permit any third party (except Permitted Service Providers) to use, Givkwik User information for any purpose other than in accordance with this API License Agreement. You will not collect any information from Givkwik Users without their express permission. You will provide all users of Your Application either (a) an opt-out method for each user desiring You to stop using such user’s information or (b) in any jurisdiction where an opt-in method is legally required, an opt-in method by which users will have to affirmatively choose to allow you to use their information). You will provide, and require all users of Your Application to use, user identification (“User ID”) and passwords or other data from designed to provide secure access, as well as an industry-standard secure method for a user of Your Application to recover a password forgotten].
2.2 You will not use our Databases, Givkwik Content, or Givkwik User information to communicate with Givkwik Users or to send unsolicited communications unless such users has opted in You will not solicit or facilitate the solicitation by any third party of Givkwik Users as a result of their status as Givkwik Users. Without limiting the foregoing, You may only use our Databases, Givkwik Content and Givkwik User information in a manner consistent with Your own Privacy Policy, which must conform with industry practice and be at least as protective as our Privacy Policy.
3. Ownership and Control.
3.1 Except as otherwise provided in this API License Agreement, as between any person in its capacity as an API Licensee and Givkwik, Givkwik as API Licensor retains, solely and exclusively, all ownership and other rights, title and interest in and to all Property (as defined in our Terms of Use), including without limitation in and to all intellectual property embodied in or associated with our Site, Databases, Givkwik Content, and any and all Givkwik services, technology and any content created or derived therefrom. There are no implied licenses under this API License Agreement, and any rights not expressly granted to You under this API License Agreement are reserved, as between any given API Licensee and API Licensor, by API Licensor. API Licensee will not take any action inconsistent with API Licensor’s ownership of any Givkwik Content or other Property. API Licensee will not exceed the scope of the licenses granted under this API License Agreement.
3.2 No license rights under any applicable intellectual property right granted in this API License Agreement is sub-licensable, transferable or assignable, except as is otherwise expressly provided for in this API License Agreement.
3.3 API Licensor may, in its sole discretion, use Your trademarks, service marks, trade names, trade dress logos, and domain names for advertising and publicizing Your use of the API. If You submit an Application to use for inclusion on API Licensor’s Site, API Licensor may host, link to, and otherwise incorporate the Application into its Site and services and, at API Licensor’s sole discretion, copy, modify, distribute, test, and take such other actions as API Licensor may in its sole discretion determine to be necessary, desirable, convenient, or appropriate.
4. Permitted Service Providers + Limited Sublicensing.
4.1 Notwithstanding anything herein to the contrary, API Licensee may work with Permitted Service Providers only to the extent necessary to facilitate its performance under this Agreement, but only if API Licensee requires such providers to be subject in writing to all of the conditions and restrictions of this API License Agreement.
4.2 You may not sublicense, assign or transfer any of your rights hereunder except, and only to the extent, expressly provided for as follows: You may sublicense, without charging any royalty or licensing fee of any kind, your right to display Givkwik Content to Your Users to enable them, and only to enable them, to display Givkwik Content on their end-user devices on which they are using Your Application. Notwithstanding anything herein to the contrary, no permitted sub-licensee shall have the right, and it will not, sub-sublicense any rights sublicensed to her, him or it, and we may terminate, and you will advise any such sub-licensee that we may terminate, such sublicense at any time, without notice, for any reason or no reason, and that it otherwise will terminate simultaneously with the termination of your license. This limited right to sub-license may become subject to such conditions as we may from time to time determine; in any such case, we will update this Agreement and your continued use thereafter will constitute your understanding of and agreement with them.
4.3 You agree to be, and you will be, liable and responsible to Givkwik, and You agree to indemnify Givkwik and all of its affiliated persons for all losses, costs, expenses, liabilities and other obligations, including without limitation attorneys’ fees (collectively, “Losses”) incurred or suffered by any or all of them as a result of any breach by any Permitted Service Provider or Sub-licensee of this API License Agreement (including without limitation the Terms of Use), including without limitation provisions related to ownership of Property, data security and user privacy, or by any use of any person whom You permit to access our Databases or use Givkwik Content, our API, our Property or otherwise act contrary to the provisions of the API License Agreement.
5. Term and Termination.
5.1 The term of this API License Agreement will commence on the date we accept you as a API Licensee after you submit your online membership form and accept this API License Agreement and will terminate as provided herein.
5.2 You may terminate your API License only by emailing a termination notice to Assistance@Givkwik.com, and the same will be effective when actually received, subject to our surviving rights hereunder. This API License Agreement will terminate automatically without notice if you fail to comply with any of its terms. The API License is only effective so long as you abide by its terms. Because you acknowledge and agree that we may modify this API Agreement as provide herein and that we have no duty to make our Site available, and for other reasons, you agree that we may terminate or modify this API License Agreement or the API License granted hereby or suspend or discontinue any use by any API Licensee, or any feature or function of our API or our Site, in whole or in part, at any time, without notice, for any reason or no reason, without liability to You or any Permitted Service Provider or any permitted sub-licensee or any other person.
5.3 Upon termination of this API License Agreement, Your User ID and access credentials will be revoked and all licenses granted under this API License Agreement will terminate unless such licenses are expressly stated as surviving. You will destroy all copies of Givkwik Content and personally identifiable information within seven (7) days of termination and provide written proof of destruction to API Licensor on our request.
5.4 The following provisions of this API Agreement will survive any termination of this API License Agreement or of the API License: all Terms of Use; all provisions pertaining to Givkwik Content and ownership of our Property; all provisions pertaining to restrictions on Your use of our Property; all provisions pertaining to fees due to us; all provisions pertaining to disclaimers of warranties & limitations on our liability, all provisions pertaining to indemnification of us by You; all provisions pertaining to the effects of termination; all provisions pertaining to confidentiality and publicity; all provisions pertaining to equitable remedies; and all miscellaneous terms and other terms necessary for the construction of the other surviving terms or which by their nature customarily would be presumed to survive. No termination of this API License Agreement will effect any termination or modification of any of the Terms of Use.
6. Security and Stability.
6.1 In order to ensure a secure and stable environment, Givkwik reserves the right to change the method of access to the its Databases and/or Givkwik Content at any time. In the event of degradation or instability of Givkwik’s system or an emergency, Givkwik may, in its sole discretion, temporarily suspend Your access to its Databases and/or Givkwik Content in order to minimize threats to and protect the operational stability and security of the Givkwik system. Your continued access to the Databases and Givkwik Content is subject to Your compliance with the Security Standards attached hereto as Exhibit A.
7. Disclaimer of Warranties + Limitation of Liability.
7.1 You acknowledge that You have not entered into this API License Agreement in reliance upon any warranty or representation by Givkwik or any affiliated person of Givkwik or any other person.
7.2 ALL MATERIALS LICENSED TO ANY LICENSEE UNDER THIS API LICENSE AGREEMENT ARE PROVIDED TO EACH SUCH LICENSE “AS IS,” “WHERE IS,” WITH ALL FAULTS, AND EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF THIS API LICENSE AGREEMENT, COURSE OF DEALING OR CONDUCT BETWEEN LICENSOR AND LICENSEE OR BETWEEN OR AMONG ANY OTHER PERSONS, OR USAGE OF TRADE. GIVKWIK EXPRESSLY DOES NOT WARRANT ANY LICENSED MATERIAL OR ANY OTHER GIVKWIK PRODUCT OR SERVICE OR GIVKWIK CONTENT PROVIDED HEREUNDER WILL MEET ANY OF YOUR REQUIREMENTS OR THAT USE OF SUCH LICENSED MATERIAL OR ANY OTHER GIVKWIK PRODUCTS OR SERVICES OR GIVKWIK CONTENT WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE.
7.3 IN NO EVENT WILL GIVKWIK BE LIABLE TO YOU OR ANY OF YOUR END USERS OR ANY OTHER END USERS OR OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF OR DAMAGE TO USE, DATA, BUSINESS, GOODWILL OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS API LICENSE AGREEMENT. IN ANY CASE, THE AGGREGATE LIABILITY OF GIVKWIK FOR ANY AND ALL CLAIMS UNDER THIS API LICENSE AGREEMENT WILL NOT EXCEED NINETY-NINE UNITED STATE DOLLARS ($99.00 USD). THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. ALL PARTIES HERETO AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7.4 SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTY DISCLAIMERS OR LIMITATIONS ON LIABILITY; ACCORDINGLY, YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ONLY DISCLAIMERS OR LIMITATIONS THAT ARE LAWFUL IN THE APPLICABLE JURISDICTION WILL APPLY TO ANY GIVEN API LICENSEE. IN ALL CASES, GIVKWIK’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
8. Representations and Warranties.
8.1 You represent and warrant that You have and that You will at all times hereafter comply with all laws applicable to and of or concerning the API License.
9. Confidential Information.
9.1 You may be given access to certain non-public information, software, and specifications relating to our materials licensed hereunder that are confidential or proprietary to Givkwik (“Confidential Information”). You may use our Confidential Information only as necessary in connection with using the materials licensed under the API License or otherwise necessary to your performance under this API License Agreement. You may not disclose our Confidential Information to any third party without our prior written consent. You will protect our Confidential Information from unauthorized use, access, or disclosure with whichever degree of care is greater, either: (a) in the same manner that you would use to protect your own confidential and proprietary information of a similar nature; or (b) that reasonable degree of care that a person in the same position as You would exercise. Even though this API License Agreement may be made available to multiple API Licensees, all API Licensees have an independent obligation to not publicly disclose at the terms of this API License Agreement or to share this with any third party other than as expressly provided for herein. If we ever publicly disclose the terms of this agreement, other then in a similar private arrangement with another licensee, then it will no longer be considered Confidential Information.
9.2 If Confidential Information is ever required to be disclosed by You to a court, government agency, regulatory requirement, or similar disclosure requirement, You will immediately notify us upon learning of the existence or likely existence of such requirement and will use reasonable efforts to avoid such disclosure and, if necessary, use reasonable efforts to obtain confidential treatment or protection by order of any disclosed Confidential Information. Notwithstanding anything to the contrary herein, notification to us under this Section should be provided by personal delivery on a same day or overnight basis, overnight courier, confirmed facsimile, or confirmed e-mail.
9.3 Upon termination of this API License Agreement, You will return to Givkwik within seven (7) days all Confidential Information and all documents or media containing any such Confidential Information and any and all copies or extracts of this API License Agreement.
9.4 Notwithstanding anything herein to the contrary, in no event will Givkwik be precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for third parties, as well as marketing and/or distributing, materials which are competitive with Your products and/or services (collectively, “Your Products”), irrespective of their similarity to current Products or Your Products that may be developed hereafter.
10. Indemnification.
10.1 You agree that You will defend Givkwik (and all of our affiliated entities and our and their personnel and representatives) against any and all Losses actions, demands, claims and suits (including without limitation product liability claims), and indemnify and hold us harmless from any and all Losses to the extent arising out of: (i) your use of the materials licensed hereunder in any manner inconsistent with this API License Agreement; or (ii) the performance, promotion, sale or distribution of your Services. In the event Givkwik seeks indemnification or defense from you under this provision, Givkwik will promptly notify you in writing of the claim(s) brought against Givkwik for which it seeks indemnification or defense. Givkwik reserves the right, at its option and sole discretion, to assume full control of the defense of claims with legal counsel of its choice. You may not enter into any third party agreement, which would, in any manner whatsoever, affect the rights of Givkwik, constitute an admission of fault by Givkwik or bind Givkwik in any manner, without the prior written consent of Givkwik. In the event we assume control of the defense of such claim, we shall not settle any such claim requiring payment from you without your prior written approval.
11. Competition.
11.1 You understand, acknowledge and agree that our business model may include activities that compete with Your business or activities. We may license our API to competitors of Yours.
12 Miscellaneous.
12.1 The heading ‘Miscellaneous’ does not mean this Section is unimportant. You must read this, too, and by entering into this API License Agreement with us, you represent that you have read it and agree to it, together with all of the other terms of this API License Agreement.
12.2 This API License Agreement: (A) sets forth the entire understanding and agreement of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements or understandings (oral or written, express or implied) between the parties in respect thereof (except to the extent that it incorporates Givkwik’s Terms of Use as described in this API License Agreement, which shall remain in full force and effect, subject to our rights to interpretation, construction and application as provided in the paragraph of the section above entitled ‘General’ pertaining to our right to resolve disputes and apply the terms of this API License Agreement; (B) may not be amended, nor shall any waiver of any provision hereof be effective, except by Givkwik as provided herein, and no waiver by Givkwik party of a breach by You hereof will operate or be construed as a waiver of any subsequent breach by You; (C) is for the benefit of the parties to this API License Agreement alone, and their respective successors and permitted assigns, and shall inure to their benefit, and is not for the benefit of, nor may any provision hereof be enforced by, any other person; (D) is subject to all limitations provided herein and in the Terms of Use (including without limitation the restrictions and limitations on assignment, transfer, sub-licensing, Permitted Use, and others); and (E) shall be governed by the laws of the State of New York, without regard to its or any other jurisdiction’s conflicts-of-law provisions. If any provision hereof shall be determined to be unenforceable, or in violation of any law, the same shall not affect the remaining provisions hereof which shall continue to be binding upon the parties. You acknowledge and agree that due to the nature of this Agreement and our services, no ambiguity in this Agreement will be construed against us as the purported author thereof, unless expressly required by law (and then only to the minimum extent expressly so required). You agree to seek independent legal advice concerning this API License Agreement, at your own expense, and you acknowledge and agree that if you do not do so, you thereby assume all risks (whether known or unknown and whether foreseeable or unforeseeable to any person) of not doing so.
12.3 You understand and agree (for Yourself, and for and on behalf of Your affiliated entities and Your and their affiliates individuals and all successors, assigns, heirs, receivers, conservators, and other representatives, agents and attorney of any kind (collectively, “Affiliates”)) that (except as expressly provided for otherwise herein regarding equitable remedies) any dispute arising out of, related to or in connection with this Agreement and/or any matter within or related to its scope may be brought only in the federal and state courts located in New York County in the State of New York. You (for Yourself and for and on behalf of Your Affiliates) hereby expressly and irrevocably: (A) consent to the personal jurisdiction of such courts for all purposes; (B) waive any defense of inconvenient forum, improper venue, and other procedural defenses and similar devices; and (C) consent to service of process pursuant to the notices provision below and all such other means as are permitted by law.
12.4 Notwithstanding anything to the contrary herein, Givkwik shall be entitled to seek equitable relief in any court in the United States or elsewhere in the world having subject matter jurisdiction without either having to post a bond or first submitting the matter to arbitration or mediation with respect to actual, alleged or threatened breaches against Givkwik of any provision herein relating to confidentiality, publicity, indemnification, or ownership of our Property, in which case, You (for Yourself and for and on behalf of Your Affiliates): (A) consent to the personal jurisdiction of such courts for all purposes; (B) waive any defense of inconvenient forum, improper venue, and other similar procedural defense; and (C) consent to service of process pursuant to the notices provision below and all such other means as are permitted by law. The rights set forth in this paragraph are in addition to any other right or remedy available to the party seeking equitable relief, at law, in equity or otherwise.
12.5 This API License Agreement does not create, and nothing contained in this API License Agreement will be deemed to establish, a joint venture between the parties, or the relationship of employer-employee, partners, principal-agent or the like. If any provision in this API License Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The waiver of a breach of any provision of this API License Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
12.5 Any notice to be given by one party or another under this API License Agreement will be in writing and delivered as provided for in the application form by which an API Licensee applies, and by which we approve such application, for an API License.
EXHIBIT A –– SECURITY STANDARDS
A-1. Security Incidents and Response.
A1.1 Security Breach. For purposes of this Exhibit, a “Security Breach” is defined as a breach of security of Your systems or site where Givkwik’s data or materials containing Personally Identifiable Information, including but not limited to Givkwik Users’ IDs or passwords, (collectively, “PII”) have been acquired by an unauthorized person or You or Givkwik reasonably believes that such a breach of security may have occurred.
A1.2 Notification and Timing. Notwithstanding any other legal obligations You may have, You agree to immediately notify Givkwik in writing upon Your discovery of a Security Breach. In accordance with Your obligations under this Section, You will use commercially reasonable efforts to notify Givkwik of the Security Breach no more than thirty (30) minutes after detection. Under no circumstances will more than one (1) hour pass between Your detecting a Security Breach and Givkwik being notified.
A1.3 Notification Format. Pursuant to this Exhibit, Your notification of a Security Breach will take the form of an email, to Asistance@Givkwik.com, in which You will provide the following information: problem statement, expected resolution time, and contact information of a representative that the Givkwik can contact to obtain incident updates.
A1.4 Givkwik Environment Isolation. You will either immediately disable functionality of the application or isolate and safeguard Givkwik data should a security issue be identified pursuant to this Exhibit. Givkwik reserves the right to require You to isolate its databases, servers, and/or networks if it appears that Givkwik customer information is being compromised by the Security Breach.
A1.5 Audit after an Incident. If a Security Breach occurs involving Your facility or Your systems, Givkwik may suspend or terminate Your access to Givkwik and may conduct a security audit over the infrastructure and related security controls designated by You to be used in provision of services under this API License Agreement.
A1.6 Givkwik Results and Your Response. Givkwik will provide You with detailed results of any audit performed by Givkwik pursuant to this Section. You will be granted thirty (30) days to resolve any issues identified by Givkwik through an audit. Once identified issues have been resolved, Givkwik may conduct a security audit to ensure completion of the resolution. Your failure to resolve issues identified through audits as set forth above may be deemed by Givkwik to be a material breach of this API License Agreement resulting in Givkwik terminating this API License Agreement without penalty or other termination charge to Givkwik.
A-2. Security Requirements.
A2.1 Physical Security. You will only locate the infrastructure designated by You to be used in provision of the services under this API License Agreement in a physically secure facility.
A2.2 Firewalls. You will deploy reasonably appropriate firewall technology in operation of Your site.
A2.3 Transfer and Storage of Givkwik Data. When Givkwik PII Data is transferred between networks pursuant to this API License Agreement, it will be encrypted.
A2.4 Authorized Access. During the term of this API License Agreement, Givkwik PII Data will only be handled by a defined and authorized group of Your personnel.
A2.5 Event Monitoring. Any of Your systems that communicate with Givkwik’s API or stores Givkwik Content must log access events (i.e., logons and logoffs), along with the time of day and the associated User ID. These logs should be kept for at least sixty (60) days. In the event of unauthorized access to Givkwik’s systems via Your systems, Givkwik reserves the right to audit these event logs as part of its investigation.
A2.6 Data Deletion and Destruction. Once this API License Agreement terminates or expires, or Givkwik data is no longer required for the purposes of this API License Agreement, Givkwik data will be immediately removed from the Your environment. Prior to disposal or reuse, all media used to store Givkwik data will be cleaned using industry best practices or destroyed.
A-3. Encryption and Security.
When using encryption, pursuant to this Exhibit, You will use only industry recognized cryptography algorithms. Encryption algorithms will be of sufficient strength to equate to 128-bit Triple DES. Hashing functions will be either SHA-1 or MD-5. Cryptographic Technologies. You will protect end user connections to Your website and web enabled applications utilizing our API with any of the following cryptographic technologies: IPSec, SSL, SSH/SCP, PGP or other technologies that provide, substantially similar levels of security, as reasonably determined by You.
First Published March 20, 2018