Omnipcx api - developer agreement
This Developer Agreement (this “Agreement”) is made between ALE INTERNATIONAL (“ALE”), with a principal place of business at 32 avenue Kleber, 92700 Colombes, France, and you, the Developer (as such term is defined below). If you are an individual accepting this Agreement on behalf of a legal person/entity, then you hereby represent that you have proper legal authority to enter into this Agreement on that legal person’s behalf and that this legal person is legally bound by the terms of this Agreement, unconditionally and irrevocably. Read this Agreement carefully before accepting or accessing/using the Developer Materials. By clicking on the “Accept” button within the registration process you agree to the terms and conditions of this Agreement for yourself and on behalf of the legal person that you represent. If you or the legal person you represent do not agree to all of the terms and conditions of this Agreement, then promptly click on the “Decline” or “I Do Not Accept” button. Without prejudice to the foregoing, you, the Developer agree that your access to and use of the Developer Materials acknowledge that the Developer have read this Agreement, understand it, and agree to be bound by its terms and conditions.
This Agreement governs Developer’s use of the Developer Materials, as defined therein. This Agreement consists of the following terms and conditions. The provisions of this Agreement shall supersede any conflicting provisions otherwise presented to ALE within the Developer’s registration process.
For the avoidance of doubt, this Agreement constitutes the entire agreement between ALE and Developer concerning the subject of API and supersedes all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements and communications, whether oral or written, between the ALE and Developer relating to this subject matter. Except as otherwise expressly stated herein, no amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by each Party.
(a) “Developer” means the legal person/entity registering itself through the OmniPCX API portal for accessing and using the Developer Materials, as such access and use has been authorized by ALE under and subject to terms and conditions of this Agreement.
(b)“Developer Devices” means the devices that are owned or licensed by Developer, which devices access, communicate or interoperate with the OmniPCX service of ALE.
(c) “Developed Works” means the software code (including without limitation the application or integration) developed by Developer by using the Developer Materials, which software code enables Developer Devices to access, communicate or interoperate with OmniPCX service solely through ALE proprietary interface elements and/or application program interfaces (“API”).
(d) “Documentation” means applicable technical specifications of the OmniPCX service made available to Developer under this Agreement.
(e)“Developer Materials” means ALE tools, in object code (and clear text formats if applicable) only (which may include modifiable script files which shall not be modified by Developer, and Documentation, made available by ALE to Developer for the purpose of this Agreement. Developer Material excludes (i) any ALE API or SDK that is not obtained under this Agreement, (ii) any ALE API or SDK that has not been productized for external use by ALE and (iii) any features or functionality not explicitly set forth in the Documentation.
(f) “Party” means either ALE or Developer and “Parties” means collectively ALE and Developer.
(g) “OmniPCX service” means the commercially available communication solution marked by ALE as further described in the Documentation.
(h)“Subcontractor” means a third Party entity or individual independent contractor whom Developer contracts to perform on its behalf the authorized development activities set forth in this Agreement to create, debug and/or test Developed Works; provided that (i) such third Party shall not be a competitor of ALE; (ii) Developer shall bind such third Party by restrictions regarding disclosure and use of Proprietary Information that are no less restrictive than those set forth herein; (iii) and Developer shall ensure that such third Party delivers to Developer (A) the Developer Materials, (B) the Developed Works and (C) all information, documentation and materials (including without limitation, source code) relating to the Developed Works, (the requirements of this Section 2(f) collectively, “Additional Subcontractor Requirements”). Developer shall be entitled to replace the Subcontractor subject to each of the foregoing conditions, including without limitation, the Additional Subcontractor Requirements.
3. License Grants and Audit.
(a) Development Rights. Subject to the provisions of this Agreement (including without limitation, all of the conditions set forth in Section 4 (Restrictions), ALE grants to Developer a personal, non-exclusive, non-transferable, terminable right, without any right to delegate such right (except as expressly permitted herein), to permit its employees or a Subcontractor to use the Developer Material and solely in accordance with the Documentation, to create, debug and/or test the Developed Works. This development right is being provided by ALE under this Agreement at no charge to Developer so that Developer can evaluate the features and benefits of the OmniPCX service either (i) for possible purchase/subscription of the OmniPCX Service for internal use purpose, or (ii) for marketing the Developed Works to its own end-user Developers solely for the purpose of enabling such end-users to access, communicate or interoperate with OmniPCX service, (i) and (ii) above being subject to a separate dedicated agreement to be entered with ALE or with ALE duly authorized reseller (“ALE Business Partner”), at ALE’s election.
(b) Internal Use. Subject to the provisions of this Agreement, Developer shall be entitled to use the Developed Works solely for its own internal business operations and/or for testing purposes of the OmniPCX service during the Term of this Agreement. Upon the expiry of this Agreement, the Developer may further use the Developed Works for its own internal business operations or for marketing purposes of the Developed Works in connection with the OmniPCX service as set forth in paragraph (a) (i) and (ii) above provided however that through a separate agreement Developer has purchased/subscribed from ALE (directly or through an authorized ALE Business Partner, at ALE’s election) the OmniPCX service prior to deployment of the Developed Works within its organization or any end-user Developer of the Developed Works.
(a) Developer shall not directly or indirectly, without the prior written consent of ALE: (i) copy all or any portion of the Developer Materials; (ii) determine or attempt to determine any source code, algorithms, methods, interfaces, data structures or techniques embodied in or used by the Developer Materials or any portion thereof (except to the extent, if at all, expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary); (iii) distribute, disclose, market, sell, rent, lease, time-share, assign, sublicense, pledge, encumber or otherwise transfer or make available the Developer Materials or Developed Works, or rights granted under this Agreement, as applicable, in whole or in part, to any third party; (iv) remove or alter any copyright, trademark, trade name, confidentiality or other proprietary notices, legends, symbols or labels appearing on or in copies of the Developer Materials; (v) perform, or release the results of, benchmark tests or other comparisons of the Developer Materials with other programs; (vi); incorporate the Developer Materials or any portion thereof into any other program or product; and (ix) use the Developer Materials other than in accordance with the provisions of this Agreement. Developer shall not create Developed Works, and shall not permit the Developed Works to be used or distributed in a manner that subjects or may subject ALE Proprietary Information, in whole or in part, to all or part of license provisions which seek to require any ALE Proprietary Information to be licensed to or otherwise shared with any third Party under provisions that require such ALE Proprietary Information to (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; or (C) be redistributable at no charge.
(b) Without limiting Section 4(a) above, Developer’s development activities during the Term of this Agreement shall be subject to all of the following additional conditions:
(i) Developer shall use the Developer Materials to create Developed Works, which, running in conjunction with OmniPCX service, shall conform to design and implementation guidelines and restrictions set forth in the Documentation. Developer shall not use the Developer Materials to create or have created a product which has substantially similar or the same functionality as OmniPCX service as documented in the applicable documentation;
(ii) Developer shall be solely responsible for updating the Developed Works as required to access, communicate or interoperate with the latest release of the Developer Materials and/or the OmniPCX service; and
(iii) Developer shall provide to ALE a description of Developed Work, enabling ALE to reasonably confirm that the proposed Developed Work conforms to the terms of this Agreement.
5. Proprietary Rights.
Notwithstanding anything to the contrary in this Agreement, ALE retains all rights, title and interest, including without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the ALE Proprietary Information, including without limitation, any copy or portion thereof. Developer shall retain all rights, title and interest in and to Developer Devices and Developed Works. Developer shall have only those rights in or to ALE Proprietary Information expressly granted to Developer pursuant to this Agreement. Developer acknowledges and agrees that ALE and other users of Developer Materials may use, develop and/or sell the same or similar technology as Developer’s Developed Works or Developer Devices; provided that such technology is developed without the use of or reference to Developer’s Developed Works. Developer agrees to take any action reasonably requested by ALE to evidence, maintain, enforce or defend the foregoing rights, and agrees not to take any action to jeopardize, limit or interfere in any manner with ALE’s ownership of, and rights with respect to, the Developer Materials or the OmniPCX Service (including any new release of such service). Developer hereby agrees (i) to promptly provide ALE with any report, feedback or other information concerning the Developer Materials, and (ii) not to disclose to any third party -and shall cause its personnel, its sub-contractor(s) or agent(s) as the case may be, to comply with the same- any report, feedback or other information concerning the Developer Materials. Developer shall have only those rights in or to the Developer Materials expressly granted to Developer pursuant to this Agreement.
6. Warranty disclaimer.
Developer shall be solely responsible for all use, installation, function, performance, operation, maintenance and support of the Developed Works. ALE AND ITS SUPPLIERS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO ANY DEVELOPED WORKS, AND ALE EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, REGARDLESS OF THE FORM OR CAUSE OF ACTION WHETHER IN CONTRACT OR TORT OR THE NUMBER OF CLAIMS, AND WHETHER IN RESPECT OF A BREACH OF CONDITION OR FUNDAMENTAL TERM OR A FUNDAMENTAL BREACH: (A) NEITHER ALE NOR ANY OF ALE’S SUPPLIERS OR LICENSORS SHALL HAVE ANY LIABILITY TO DEVELOPER FOR ANY ECONOMIC, CONSEQUENTIAL, DIRECT, INDIRECT, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOST REVENUES OR PROFITS) ARISING OUT OF THIS AGREEMENT. THE FOREGOING EXCLUSION OF LIABILITY SHALL NOT APPLY TO BREACH BY ALE OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 HEREIN. AND OTHERWISE SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY THE APPLICABLE LAW TO THIS AGREEMENT.
BECAUSE SOME COUNTRIES/STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY BUT MAY ALLOW LIABILITY TO BE LIMITED, IN SUCH CASES, THE LIABILITY OF ALE, ITS SUPPLIERS OR LICENSORS SHALL, UNDER THIS AGREEMENT, WHICHEVER THE NUMBER OF CLAIMS, BE LIMITED IN THE AGGREGATE TO TEN EUROS OR THE EQUIVALENT AMOUNT IN US DOLLARS AT THE TIME THE CLAIM IS MADE WHETHER OR NOT THE RELATED DAMAGES ARE FORESEEABLE AND WHETHER OR NOT ALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
For the purpose of this Agreement, “Proprietary Information” means all information and material disclosed by or for a Party (“Discloser”) to the other Party (“Recipient”) (whether in writing, or in oral, graphic, electronic or any other form) that is marked as (or provided under circumstances reasonably indicating it is) confidential or proprietary, or if disclosed orally or in other intangible form or in any form that is not so marked, that is identified as confidential at the time of such disclosure. Proprietary Information, includes without limitation, the Developer Materials, the OmniPCX Services, the Documentation, and any trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, performance information, software documents, and other technical, business, product, marketing and financial information, plans and data. Developer acknowledges and agrees that the Developer Materials and the OmniPCX service embody substantial creative efforts and constitutes and contains valuable trade secrets and confidential information of ALE.
Recipient shall hold all Proprietary Information in strict confidence and shall not disclose any Proprietary Information to any third party, other than to its employees or agents who need to know such information to perform Recipient’s obligations or exercise Recipient’s rights hereunder and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use any Proprietary Information for the benefit of itself or any third party or for any purpose other than the performance of Recipient’s obligations or exercise of Recipient’s rights hereunder. Recipient shall take the same degree of care that it uses to protect its own confidential and proprietary information and materials of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication or dissemination of the Proprietary Information. Recipient shall not make any copies of the Proprietary Information except as necessary to perform its obligations or exercise its rights hereunder, unless otherwise approved in writing in advance by Discloser.
The foregoing restrictions on disclosure and use shall not apply with respect to any Proprietary Information which the Recipient reasonably demonstrates: (i) was or becomes publicly known through no act or omission of Recipient; (ii) was known by Recipient before receipt from Discloser or (iii) becomes known to Recipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Proprietary Information. In addition to the foregoing, Recipient may disclose Proprietary Information to the extent (A) approved by Discloser or (B) Recipient is legally compelled to disclose such Proprietary Information; provided that Recipient shall (1) promptly notify Discloser of the notice compelling disclosure, (2) reasonably cooperate with Discloser in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Proprietary Information, (3) reproduce any confidentiality or proprietary markings appearing on the Discloser Confidential Information in the copies of such disclosed to the Company, (4) only furnish the portion of the Proprietary Information that it is required to disclose and (5) use reasonable efforts to obtain reliable assurances that the disclosed Proprietary Information shall be treated confidentially. Notwithstanding any such compelled disclosure by the Recipient, such compelled disclosure shall not otherwise affect the Recipient’s obligations hereunder with respect to Proprietary Information so disclosed.
9. Term and Termination.
(a) This Agreement shall commence upon the Effective Date and continue in full force and effect for a period of one year unless earlier terminated as provided herein (“Initial Term”). Thereafter, this Agreement may be extended for a further period of one year subject to signature of an amendment agreed to that effect by both Parties (the “Extended Term;” the Initial Term and Extented Term shall together be referred to as the “Term”), unless earlier terminated as provided herein.
(b) Either Party may terminate this Agreement by Notice (and in the case of ALE, may revoke the license grant) if the other Party (i) commits a material breach of this Agreement and such breach, if capable of being cured, is not cured within thirty (30) days of a notice of termination. This Agreement may be terminated immediately upon notice by either Party if the other Party: (A) violates Sections 3(a) (Development Rights) and 3(b) (Internal Use), 4 (Restrictions), 5 (Proprietary Rights) or 9 (Proprietary Information); (B) terminates or suspends its business; (C) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors or becomes subject to direct control of a trustee, receiver or similar authority; or (D) becomes subject to any bankruptcy or insolvency proceedings or orders. In addition to any other appropriate equitable relief (which shall be available without the necessity of proving actual damages) or remedies it may have at law, if ALE has terminated this Agreement pursuant to this Section 10(b), it shall be entitled to revoke the right to use granted.
(c) Upon any termination or expiration of this Agreement, all right to use granted hereunder shall terminate and Developer shall promptly (not to exceed ten (10) days) deliver to ALE or destroy all copies of the Developer Materials (if any made) and all ALE Proprietary Information, including without limitation, all extracts of the foregoing and all documents, notes and other materials relating to Developer’s testing and evaluation of the Developer Materials, and shall furnish to ALE within the same time period an affidavit signed by an officer of Developer certifying that that such delivery or destruction has been fully effected.
(d) The following provisions of this Agreement shall survive the expiration or any termination of this Agreement in accordance with their terms: Sections 1 (General), 2 (Definitions), 3(c) (Audit), 4 (Restrictions), 5 (Proprietary Rights), 6 (Warranty Disclaimer), 8 (Confidentiality), 9 (Term and Termination), and 10 (Miscellaneous). Termination of this Agreement by either Party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either Party from any liability for breach of such Party’s obligations under this Agreement. Neither Party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a Party shall be without prejudice to any other right or remedy of such Party under this Agreement or applicable law.
This Agreement shall be governed by the laws of France, without regard to its choice of law provisions. Any dispute arising out of or relating to this Agreement which cannot be amicably settled by the Parties shall be finally settled by the competent courts of Paris, France. Neither Party may assign any of its rights, or delegate any of its obligations, under this Agreement, without the prior written consent of the other Party. Such prior written consent is not required if assignment is made to any affiliates of the assigning Party. The Parties do not intend that any agency or partnership relationship be created between them by this Agreement. Developer shall defend, indemnify and hold ALE, its affiliates, its suppliers and licensors, and their respective officers, directors, employees and agents harmless from and against any and all claims, damages, losses, liabilities, costs and expenses (including but not limited to attorney’s fees) arising from or in connection with: (i) all matters related to the Developer’s use of the Developer Materials and OmniPCX service in violation with the terms of this Agreement.
Without prejudice to the foregoing, ALE reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Developer, Developer hereby agreeing in such case to cooperate with ALE defense of the claim. During the Term of this Agreement and for three (3) years thereafter, Developer shall keep complete and accurate records relating to the Developer Materials, Developed Works and Developer’s compliance with the provisions of this Agreement. Developer shall provide ALE promptly upon its request with any information necessary to verify Developer’s compliance with the provisions of this Agreement. All notices shall be given in writing and shall be deemed effective upon the date of receipt of such notice if to ALE at the address first set forth above and if to Developer at its place of business address it specified at the time of its registration (or other new address further specified by Developer through the OmniPCX registration portal), as evidenced by delivery confirmation receipts of commercial courier services or the relevant Postal Service. A scanned copy of this Agreement signed by an authorized representative of either Party shall have the same force and effect as an original.