This Application Developer and API License Agreement (the “Agreement”), effective as of the date of acceptance of this Agreement (the “Effective Date”), is by and between the Chocogrid Contracting Party and you, or the company, organization or other legal entity (“Entity”) that you represent (“Licensee”). If you are entering into this Agreement on behalf of an Entity, you are agreeing to this Agreement for that Entity and representing to the Chocogrid Contracting Party that you have the authority to bind such Entity and its affiliates to this Agreement. DEFINITIONS
For purposes of this Agreement, capitalized terms shall have the meanings set forth below. Capitalized terms utilized in this Agreement and not defined have the meaning set forth in the ChocoGrid Terms of Service (the “Terms”). Agent: means any individual authorized to use the Service by any Subscriber as an agent and/or administrator. API: means an API and any accompanying or related documentation, source code, executable applications and other materials made available by a ChocoGrid Contracting Party, including, without limitation, through itsDeveloper Website. Applications: mean web or other software services or applications developed by Licensee that utilize or interact with the API and are authorized to be Published pursuant to this Agreement.
App Market: means any marketplace or other aggregator or public repository of code or applications. Confidential Information: means all information disclosed by or on behalf of a ChocoGrid Contracting Party to Licensee which is in tangible form and labeled confidential (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information may include, without limitation, proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, pricing, security or other business information. For all purposes of this Agreement, Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information (other than Service Data) that () was already known to Licensee at the time of disclosure by or on behalf of the Chocogrid Contracting Party without an obligation of confidentiality; (b) was or is obtained by Licensee from a third party not known by Licensee to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement; or (d) was or is independently developed by Licensee without use of Chocogrid's Confidential Information. End-User: means any person or entity other than an Agent with whom any Subscriber or its Agents interact with using the Service. Intellectual Property Rights: means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights. Internal Use: means the use of the API in connection with Licensee’s subscription to the Service for Licensee’s internal business purposes in accordance with the Terms.
Marketplace: means the marketplace or other aggregator or public repository of code or applications provided and operated by a Chocogrid Contracting Party.
Paid Applications: mean any Application published by Licensee in which Subscriber pays Licensee and/or a Chocogrid Contracting Party for a license to use, access and/or deploy such Application. Payment Processor: means the third party payment processor that processes fees related to a Paid Application. Publishing: means the making of any Application available to any Subscriber other than Licensee or for any purpose other than for use by Licensee as a Subscriber for Internal Use.
Service: means only the on-demand customer service and live chat solutions made available by the Chocogrid Contracting Parties online via the subscriber login link and other web pages as designated by a Chocogrid Contracting Party, including, individually and collectively, the applicable Software, Updates, API and Documentation.
Service Data: means data stored or transmitted on or through the Service by or on behalf of a Subscriber, Agent or End-User that specifically authorizes Licensee to access and use such data in connection with Licensee’s Applications and Login or other account configuration or usage data with respect to the Service of or by such Subscriber, Agent or End-User.
Subscriber: means any individual or Entity that subscribes to a Service. “We,” “Us” or “Our”: means the Chocogrid Contracting Party described in Section 18. Chocogrid Contracting Party: means the Chocogrid entity with which You are contracting under these Terms. Chocogrid Service: means only the on-demand customer service solution made available by Chocogrid online via the subscriber login link and other web pages designated by Chocogrid, including, individually and collectively, the applicable Software, Updates, API and Documentation.
PURPOSE AND LICENSE This Agreement governs Licensee’s rights to use and access the API for the purpose of developing, implementing and Publishing Applications. Licensee’s access to and use of the API for Internal Use is governed by Licensee’s Terms of Service by and between Licensee and the Chocogrid Contracting Party relating to Licensee’s access and use of a Service, including any and all restrictions and policies implemented by the Chocogrid Contracting Party from time to time with respect to the API as set forth in the Documentation, this Agreement or as otherwise communicated to Licensee (“General API Policies”). Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 3, Chocogrid grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term to: (a) use and make calls to the API to develop, implement and distribute Applications solely for use by Subscribers in connection with the Service; (b) use, reproduce, distribute, and transmit Service Data to the extent necessary to format and display it through the Applications; (c) use and display the Mark only to identify that the Service Data originates from the Service; and (d) market and sell Paid Applications through the Marketplace in accordance with this Agreement.
Licensee grants to Chocogrid a non-exclusive, worldwide, fully paid-up, royalty-free license, for as long as its Applications are Published to a Marketplace to: (i) market, sell and distribute such Applications; (ii) to permit others to access, install, purchase and (in the case of downloadable software applications) download such Applications through such App Market; and (iii) use, perform, and display such Applications. Licensee further grants to the Chocogrid Contracting Party a nonexclusive, worldwide, fully paid-up, royalty-free license, for the term of this Agreement, to use Licensee’s name, Application name(s) and associated logos (collectively, “Licensee Marks”) solely to enable the Zendesk Contracting Party to exercise its rights and perform its obligations under this Agreement. Any use of Licensee’s Marks shall be in accordance with Licensee’s reasonable trademark usage policies if such policies are communicated to the Chocogrid Contracting Party. The Chocogrid Contracting Party shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into the Service and/or the API any suggestions, enhancement requests, recommendations or other feedback the Chocogrid Contracting Party receives from Licensee.
RESTRICTIONS AND RESPONSIBILITIES The licenses granted in Section 2 of this Agreement are explicitly conditioned on Licensee’s adherence to the following restrictions and compliance with its responsibilities as set forth herein. Licensee must comply with all restrictions set forth in this Agreement, the Terms, the Marketplace Terms of Use, the Privacy Policy, and the General API Guidelines in all uses of the API and Service Data. Licensee must also comply with all restrictions set forth in this Agreement and the Trademark Guidelines in all uses of Marks. If the Chocogrid Contracting Party believes, in its sole discretion, that Licensee has violated or attempted to violate any term, condition or the spirit of this Agreement, the license afforded Licensee pursuant to this Agreement may be temporarily or permanently revoked, with or without notice to Licensee.
FEES If Licensee submits a Paid Application, such application is approved by the Chocogrid and Licensee follows the required registration and listing steps contained herein and as otherwise communicated to Licensee, Licensee may list the Paid Application on the Marketplace and charge Subscribers to purchase the Paid Application. Fees collected from the sale of Licensee’s Paid Application (“Purchase Fees”) must be processed through the Payment Processor account Licensee registered for in connection with listing the Paid Application. Purchase Fees shall be processed from the Subscriber to Licensee through the Payment Processor. Purchase Fees shall be transferred to Licensee’s Payment Processor account per the terms of the agreement entered into between Licensee and Payment Processor. Chocogrid reserves the right to charge fees to Licensee related to any aspect of the Marketplace at its sole discretion either as indicated to Licensee at time of listing of the Paid Application or upon ten (10) days notice to Licensee. Continued listing of the Paid Application on the Marketplace after notice of the Chocogrid's collection of such fees, shall be deemed consent to the imposition and collection of such charges.
CONFIDENTIALITY Licensee may from time to time, gain access to Confidential Information. Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein, Licensee may not disclose Confidential Information to a third party without the prior express consent of the Chocogrid, provided in writing or by email. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
LIMITATION OF LIABILITY Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, THE Chocogrid's LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
INDEMNIFICATION Licensee will indemnify and hold the Chocogrid harmless against any claim brought by a third party against the Chocogrid arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by Licensee or any matter which Licensee has expressly agreed to be responsible pursuant to this Agreement. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS Licensee may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Licensee’s rights under this Agreement or delegate performance of Licensee’s duties under this Agreement without the Chocogrid’s prior consent, which consent will not be unreasonably withheld. The Chocogrid may, without Licensee’s consent, assign this Agreement to any affiliate or in connection with any merger or change of control of the ChocoGrid or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement, together with the Terms of Service related to Licensee’s subscription to the Service by and between Licensee and the ChocoGrid, the Privacy Policy and the Marketplace User Agreement, constitute the entire agreement among the parties with respect to the subject matter of this Agreement. Either party’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement. SEVERABILITY If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
