Kinetic Advantage API Terms of Service

(Last Updated: April 2021)

These Kinetic Advantage API Terms of Service ("Terms of Service") govern your access and use of the APIs provided by Kinetic Advantage, LLC, its subsidiaries, and affiliates (collectively, "Kinetic"). The guides, materials, references, software and other applications or services provided by Kinetic in association with the access and use of the Kinetic APIs, together with the Kinetic APIs themselves, are collectively referred to as a suite of "Kinetic API Services".

By accessing or using the Kinetic API Services you confirm your agreement to be bound by these Terms of Service. The Kinetic APIs may also be subject to any other agreements you have with Kinetic. If there is a conflict between these Terms of Service and the terms of your other agreements with Kinetic, those terms will control with respect to that conflict.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND KINETIC.

1. Access to APIs

A. General

You may not use the Kinetic API Services if you are not of legal age to form a binding contract with Kinetic, you determine that you are unable to comply with these Terms of Service, or you are prohibited by applicable law from accessing or using the Kinetic API Services.

B. Entity Access

If you are accessing Kinetic API Services on behalf of a company, entity, or organization (collectively "entity"), then you represent and warrant that you: (a) are an authorized representative of that entity with the authority to bind such entity to the Terms of Service; (b) have read and understand the Terms of Service; and (c) agree to these Terms of Service on behalf of such entity. All references to "you" in these Terms of Service shall also refer to that entity.

C. Registration & Credentials

To access the Kinetic API Services, you may be required to register. After an approved registration, you will be issued certain credentials, which may be required to access the Kinetic APIs. You may not make credentials available to others, including by embedding them in open-source projects and only you may access the Kinetic API Services with the credentials provided to you. You will not misrepresent or mask your identity or your credentials when accessing or using the Kinetic API Services.

D. Access Revocation

We reserve the right to revoke your access to the Kinetic API Services without prior notice if we determine your use violates the Terms of Service or is otherwise objectionable as determined in Kinetic's sole discretion.

2. Use of APIs

A. Compliance

Access, implementation and use of the Kinetic API Services must be in compliance with all applicable law, regulation, third party rights (including, without limitation, laws regarding the import or export of data or software, privacy, and local laws) as well as Kinetic's instructions. You will only use the Kinetic API Services in connection with legally permissible activities and as described in the Terms of Service.

If requested, promptly upon request, you will be required to certify certain aspects of your compliance with these Terms of Service, including without limitation, your compliance with the above paragraph, and your security and data use practices. We will provide the form of certification which must be signed by an authorized officer of your entity.

C. API Limitations

Kinetic sets and enforces limitations on the use of Kinetic APIs. You will not circumvent, or attempt to circumvent, such limitations as they apply to each Kinetic API or as otherwise set forth in the Terms of Service, except as approved in writing by Kinetic. Kinetic may limit the number or nature of network calls that you or your application may make. Kinetic may change such usage limits at any time with or without notice and may use any means to enforce its usage limitations or prevent overuse of the Kinetic APIs.

D. Open Source

To facilitate your Kinetic API integration, Kinetic may make certain Software Development Kit(s) ("SDK(s)") and/or libraries available to you under a separate open-source license. You agree that any Kinetic API integration facilitated with such open-source SDK(s) and/or libraries remains subject to the Terms of Service.

E. API Monitoring, Audit, Review

We have the right to inspect, monitor and audit any records or activity related to your use of the Kinetic API Services, to among other things, improve the Kinetic API Services and identify security issues, or ensure compliance with the Terms of Service. If need be, you will cooperate with audit requests by providing Kinetic access to relevant knowledgeable personnel, physical premises, documentation, infrastructure, and application software.

We reserve the sole right to determine whether or not your use of the Kinetic API Services is acceptable including the manner in which the Kinetic APIs are integrated into Your Products (defined below). Kinetic may collect and use usage data and information related to your use of the Kinetic API Services.

You agree to reimburse us for the costs and expenses of any audit that reveals a material breach of these Terms of Service related to your use of the Kinetic API Services. You agree to promptly address and correct all deficiencies identified in any such audit.

Kinetic's review, testing, or approval of your products or services does not constitute any representation or acknowledgement by Kinetic that Your Products and/or any content therein comply with the Terms of Service, any laws, rules, or regulations, nor does it constitute any acceptance by Kinetic of any responsibility or liability in connection such products or services, or any content therein.

F. Revocation

If you do not comply with the Terms of Service or fail to timely evidence such compliance or if we believe that you have attempted to exceed or circumvent any of the prohibited uses or the additional requirements or limitations described in the Terms of Service, your ability to use the Kinetic API Services may be temporarily or permanently blocked or revoked.

G. Certain Prohibited Uses

Unless permitted by applicable law or any Supplemental Agreement(s) between you and Kinetic, you will not, and will not direct, encourage, or assist any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Kinetic API Services; (b) modify or make derivative works based upon the Kinetic API Services; (c) improperly use the Kinetic API Services, including (1) creating Internet "links" to any part of the Kinetic API Services, "framing" or "mirroring" any part of the Kinetic API Services on any other websites or systems, or "scraping" or otherwise improperly obtaining data from the Kinetic APIs, (2) transmitting any viruses or other code that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data; (d) reverse engineer, decompile, modify, or disassemble the Kinetic API Services; (e) send spam or otherwise duplicative or unsolicited messages with the Kinetic APIs; or (f) use the Kinetic APIs to (1) display any offensive content or any content for which you do not have the right to share with Kinetic or to display or (2) distribute unsolicited advertising or promotions, or (3) engage in fraudulent or unauthorized activity including phishing, pharming, spidering, harvesting or other similar activities.

In addition, you shall not, and shall not direct, encourage, or assist any other party to, access or use the Kinetic API Services to: (a) design or develop a competitive or substantially similar product or service; (b) copy or extract any features or functionality thereof; (c) launch or cause to be launched on or in connection with the Kinetic API Services a malicious automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program intended to overburden or hinder the operation and/or performance of the Kinetic API Services; (d) attempt to gain unauthorized access to the Kinetic API Services or its related systems or networks; (e) include any underlying Kinetic platform or product with competitors in any aggregated view i.e. webpage, app, software, etc.; (f) aggregate Kinetic's data with competitors' data; or (g) parse or scrape any of Kinetic's data; in each case other than as explicitly permitted by Kinetic in writing. You will not share with a third party (or enable a third party to use) any operational, technical, or other data obtained through the use of the Kinetic API Services in any manner that is competitive to Kinetic, including, without limitation, in connection with any application, website or other product or service that also includes, features, endorses, or otherwise supports in any way a third party that provides services competitive to Kinetic's products and services.

3. Ownership; License

A. Ownership

Kinetic owns all right, title and interest, including without limitation, all intellectual property rights and other rights in and to its software applications (including but not limited to the Kinetic API Services), any intellectual property rights used in connection with the software applications, and other proprietary technology, including any data structures therein, accompanying documentation, and any updates or revisions to the foregoing. All rights not specifically conveyed are retained by Kinetic.

B. Licenses

Subject to your compliance with the Terms of Service, Kinetic hereby grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable license to access and use the Kinetic API Services for the sole purposes of developing, testing, using, and maintaining an integration of your application with the Kinetic API Services, and to refer to Kinetic for the sole purpose of identifying Kinetic as the source of the Kinetic API Services.

Subject to the rights granted to Kinetic and limitations herein, you reserve and retain sole and exclusive ownership of all right, title, and interest in, to, and under (a) your extensions and applications, and (b) all modifications, corrections, repairs, translations, enhancements, and other derivative works and improvements of your extensions and applications, including all intellectual property rights arising therefrom or relating thereto (collectively, (a) and (b) are "Your Products"), to the extent Your Products do not infringe any of Kinetic's intellectual property rights. You are solely responsible for all costs incurred by you in the creation and maintenance of Your Products.

4. Content

You are solely responsible for selecting all content made available through and contained in Your Products and for ensuring that such content complies with the Terms of Service and any other requirements applicable to such content. You are fully responsible for any information you provide.

5. Privacy

A. Kinetic Data

Except for third party content described herein, "Kinetic Data" includes all data received from Kinetic through a Kinetic API. Where such data includes non-public content relating to a user, such content must not be exposed to other users or to third parties without proper consent from that user.

B. Confidentiality

You may be given access to information that is confidential to Kinetic ("Kinetic Confidential Information"), which may include your credentials as well as any materials, communications or other information that is marked confidential or that would reasonably be considered confidential under the circumstances. You agree to use Kinetic Confidential Information only for the purpose of using the Kinetic API Services in accordance with the Terms of Service, and, unless compelled by a court of applicable jurisdiction (and you gave Kinetic written notice and a reasonable chance to defend its interests prior to such court compelled disclosure), you agree to not disclose any Kinetic Confidential Information to any third party without Kinetic's prior written consent.

Kinetic Confidential Information does not include information that you independently developed, that was rightfully given to you by a third party without any confidentiality obligation, or that becomes public through no fault of your own or any party under your control.

C. Security

You agree to implement and maintain appropriate technical, physical, and organizational measures to protect Kinetic Data and Kinetic Confidential Information against unauthorized or unlawful processing and against unauthorized loss, destruction, damage, alteration, or disclosure in the same manner that you would protect your own confidential and proprietary information but in no event using less than a reasonable degree of care.

6. Term; Termination and Survival

A. Term, Termination

These Terms of Service will apply for as long as you access and use the Kinetic API Services. You may terminate these Terms of Service at any time by giving us notice and ceasing to access and use the Kinetic API Services. Kinetic may terminate these Terms of Service at any time, including if it determines that you have violated or attempted to violate the Terms. These Terms of Service will terminate automatically in the event the Kinetic APIs you use are no longer made available to you, if your Supplemental Agreement with Kinetic is terminated or expires, or if any representations you make herein are deemed or found to be untrue.

Upon termination of these Terms of Service, you will immediately stop using the Kinetic APIs, cease all use of the Kinetic intellectual property and delete any cached or stored content and any Kinetic Data (including any Kinetic Confidential Information).

B. Survival

The provisions set forth in these Terms of Service that, by their nature, should survive termination or expiration of these Terms of Service, will survive any expiration or termination of these Terms of Service.

7. Relationship of Parties

The relationship of the parties is that of independent contractors. These Terms of Service do not create a partnership, joint venture, franchisee, or other similar relationship. Neither party will make a public statement that suggests partnership with or sponsorship or endorsement by the other party without such party's prior written approval.

The parties' obligations under these Terms of Service are non-exclusive. Unless otherwise agreed upon separately in writing, neither party is precluded from marketing, licensing, positioning, providing, and distributing its own products and services through other alliances, programs, or partners. Nothing in these Terms of Service prohibits or restricts either party's right to develop, make, use, market, license, position, provide and distribute products or services similar to or competitive with those of the other party as long as it does not breach, or attempt to breach, these Terms of Service.

8. Representations; Indemnification; Disclaimer; Limitation of Liability

A. Representations

You hereby represent and warrant that you have all authority necessary to bind yourself (including your entity) to these Terms of Service and that you are not prohibited from accessing or using the Kinetic API Services in the country in which you reside. If, at any time, you do not have authority, are legally prohibited, or do not agree to these Terms of Service, then these Terms of Service are automatically terminated, and you must discontinue all access and use of the Kinetic API Services immediately.

You further represent and warrant that (a) you have the right to distribute, or otherwise make available Your Products to your end users, (b) such products comply with all applicable local, state, federal and international laws, and regulations as well as applicable terms of service and privacy notices and (c) Your Products do not and will not infringe the rights of any third party.

B. Indemnification

You agree to indemnify and hold Kinetic and its officers, directors, employees, and agents harmless from and against any and all claims, demands, losses, liabilities, and expenses (including legal fees), arising out of or in connection with: (a) your use of the Kinetic API Services or information obtained through your use of the Kinetic API Services; (b) your breach or violation of the Terms of Service or (c) your violation of the rights of any third party, including with respect to any third party content.

C. Disclaimer

THE KINETIC API SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE". KINETIC DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, KINETIC MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE KINETIC API SERVICES OR ANY INFORMATION REQUESTED OR OBTAINED THROUGH THE USE OF THE KINETIC API SERVICES, OR THAT SUCH SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE KINETIC API SERVICES, AND ANY INFORMATION REQUESTED OR OBTAINED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

D. Limitations

WHERE PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KINETIC OR ANY OF ITS SERVICE PROVIDERS, SUPPLIERS OR REPRESENTATIVES (INCLUDING OFFICERS OR DIRECTORS) BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (B) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, ARISING FROM YOUR USE OF THE KINETIC API SERVICES, REGARDLESS OF WHETHER YOU OR SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS OF SERVICE IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. KINETIC'S AGGREGATE LIABILITY UNDER THESE TERMS OF SERVICE WILL NOT EXCEED ONE HUNDRED DOLLARS ($100).

9. Support and Maintenance

Kinetic may provide documentation, functional and technical design documents, and other documents that may be relevant or useful in using Kinetic API Services. Kinetic has no obligation to provide any maintenance, support, or training for set-up or use of any Kinetic API Services.

10. Modifications

Kinetic in its sole discretion may modify, update, or discontinue the Kinetic API Services. Kinetic may also impose additional limits on certain features and services or restrict your access to parts or all of the Kinetic API Services without prior notice or liability. While we can provide no guarantee, we will try to ensure that future versions of the Kinetic APIs are backwards compatible to the immediately preceding version.

Kinetic may amend these Terms of Service from time to time. Amendments will be effective upon Kinetic's posting of such updated Terms of Service at this location or in the amended policies or documentation related to the Kinetic APIs. Your continued access or use of the Kinetic API Services after such posting confirms your consent to be bound by these Terms of Service, as amended.

11. Miscellaneous

These Terms of Service are governed by the laws of the State of Indiana, without regard to conflicts of law principles, and all claims arising out of or relating to these Terms of Service will be brought exclusively in the federal or state courts of Hamilton County, Indiana, USA, and you consent to jurisdiction in those courts. These Terms of Service were drafted in English and the English-language version shall control in the event of a conflict with any translated version. You may not assign any of the rights or obligations under these Terms of Service, by operation of law or otherwise, without the prior written consent of Kinetic. Any attempted assignment in violation of this paragraph is void. Kinetic may exercise its rights herein in its sole discretion and without prior notice. The Terms of Service constitute the entire agreement among the parties with respect to the subject matter and supersede and merge all prior proposals, understandings, and contemporaneous communications. Any delay by Kinetic in enforcing any of its rights under these Terms of Service, including with regard to your non-compliance, shall not constitute a waiver of Kinetic's rights to future enforcement of its rights under these Terms of Service. If any provision of these Terms of Service is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be restated and enforced to the maximum extent permissible, and the remaining provisions of these Terms of Service will remain in full force and effect.