API Terms and Conditions

2.1 License Grant

Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions set forth in this Agreement, TTC hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the Term of this Agreement to use the API in connection with its internal business purposes by Authorized Users.

2.2 Use Restrictions

Customer shall not use the API for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as expressly set forth in this Agreement, Customer shall not at any time, and shall not permit others to:

1. copy, modify, or create derivative works of the API, in whole or in part;
2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the API;
3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the API, in whole or in part;
4. remove any proprietary notices from the API;
5. use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
6. combine or integrate the API with any software, technology, services, or materials not authorized by TTC;
7. access or use the API for purposes of competitive analysis of TTC or the API, the development, provision, or use of a competing product or service, or any other purpose that is to TTC’s detriment or commercial disadvantage;
8. bypass or breach any security device or protection used by the API or violate any rate limits imposed by TTC on use of the API; or
9. use any Outputs to train, enhance, or otherwise develop or improve any AI models or technologies that do or may compete with TTC or its products or services, including without limitation the API.

2.3 AI Technologies

The API includes features and functionalities supported by AI technologies, and that allow Customer to provide “Inputs” to the API and receive “Outputs” via the API in response after having been processed by TTC. As between TTC and Customer, and to the extent permitted by applicable law, Customer: (a) retains all ownership rights in its Inputs; and (b) owns all Outputs (and TTC hereby makes all assignments necessary to accomplish the foregoing ownership). Customer is solely responsible for its use of all Output and evaluating the Output for accuracy and appropriateness for its use cases, including by utilizing human review where appropriate. ALL OUTPUT IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND.

2.4 Use of Inputs; Security Measures

Customer hereby grants to TTC a nonexclusive, worldwide, royalty-free license to reproduce, distribute, and otherwise use the Inputs and perform all acts with respect to the Inputs as may be necessary for TTC to provide the Outputs. TTC will not use the Inputs or Outputs for any purpose other than: (i) providing the API and otherwise performing its obligations hereunder; and (ii) on an aggregated and anonymized basis, improving the operation of the API and the technology underlying the API. TTC has implemented commercially reasonable administrative, technical, and physical measures designed to maintain the security and integrity of the API, Inputs, and Outputs while in TTC’s possession, custody, or control.

2.5 Reservation of Rights

TTC reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Customer or any third party, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the API.

3.1 General

Customer is responsible and liable for all uses of the API resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Customer’s Authorized Users in connection with their use of the API, if any. Any act or omission by Customer’s end user that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all of Customer’s Authorized Users aware of this Agreement’s provisions as applicable to such end user’s use of the API and shall cause Authorized Users to comply with such provisions.

3.2 Registration; Security

4.1 Support

TTC shall provide Customer with the commercially reasonable support services via E-Mail during TTC’s normal business hours. Except as expressly agreed by the Parties, this Agreement does not entitle Customer to any additional support services for the API.

4.2 Updates

During the Subscription Period, TTC shall provide Customer, at no additional charge, all Updates, each of which are a part of the API and are subject to the terms and conditions of this Agreement. Customer acknowledges that TTC may require Customer to obtain and use the most recent version of the API. Updates may adversely affect how Customer systems communicate with the TTC Offering. Customer is required to make any changes to Customer systems that are required for integration as a result of such Update at Customer’s sole cost and expense.

5.1 Fees

Customer shall pay TTC the fees (“Fees”) set forth in the Order without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order. If Customer fails to make any payment when due, in addition to all other remedies that may be available:

1. TTC may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law;
2. Customer shall reimburse TTC for all reasonable costs incurred by TTC in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
3. if such failure continues for ten (10) days following written notice thereof, TTC may prohibit access to the API until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other person by reason of such prohibition of access to the API.

5.2 Taxes

All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on TTC’s income.

6.1 Definition

From time to time during the Subscription Period, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (a) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (b) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information does not include information that is already known to the receiving party at the time of disclosure or is or becomes: (i) publicly available through no wrongful act or omission of the receiving party; (ii) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (iii) independently developed by the receiving party without use of, reference to, or reliance upon the disclosing party’s Confidential Information.

6.2 Duty

The receiving party shall not use the disclosing party’s Confidential Information except to perform its obligations and exercise its rights hereunder nor shall it disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.

6.3 Return of Materials

On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed.

7.1 Processing of Personal Data

TTC may collect certain information through the API about Customer or any of Customer’s employees, contractors, or agents. By accessing, using, and providing information to or through the API, Customer consents to all actions taken by TTC with respect to Customer’s information in compliance with the then-current version of TTC’s Privacy Notice, available at thetokencompany.com/privacy.

7.2 Protected Health Information

If Customer provides to TTC any “Protected Health Information” or “PHI” as defined in 45 CFR § 160.103 of the HIPAA Regulations, TTC and Customer shall enter into a Business Associate Agreement, which shall the control the processing of such Protected Health Information. Customer acknowledges and agrees that: (i) the Products are not designed to store Sensitive Data; and (ii) Customer will not use the API to store Sensitive Data and will not submit, post, or otherwise transmit through the Products any Customer Content that includes or constitutes Sensitive Data.

12.1 Term

The initial term of this Agreement begins on the Effective Date of the Order and, unless terminated earlier pursuant to any of this Agreement’s express provisions, will continue in effect for the duration of the initial term set forth in the Order (the “Initial Subscription Period”). This Agreement will automatically renew for up to additional successive renewal terms of the duration set forth in the Order (each a “Renewal Period” and together with the Initial Subscription Period, the “Subscription Period”) unless earlier terminated pursuant to this Agreement’s express provisions or if either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current Initial Term or Renewal Term.

12.2 Termination

12.3 Effect of Expiration or Termination

Upon expiration or termination of this Agreement for any reason all licenses and rights granted to Customer under this Agreement will also terminate and Customer must cease using, destroy, and permanently erase all copies of the API from all devices and systems Customer directly or indirectly controls.

12.4 Survival

The following Sections of this Agreement will survive the Agreement’s termination or expiration: 1, 2(b), 2(c), 2(d), 3(a), 5, 6, 6(a), 7(b), 9, 10, 11, 12(c), 12(d), and 13.

13.1 Entire Agreement

This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement; and (b) second, any other documents incorporated herein by reference.

13.2 Notices

All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.

13.3 Amendment and Modification; Waiver

TTC may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. TTC will provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer’s account or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the API after the effective date of the revised Agreement, such access and use will constitute Customer’s acceptance of the revised Agreement beginning at the next Renewal Subscription Period (if any) or, if Customer enters into a new Order with TTC, as of the date of execution of such Order.

13.4 Severability

If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

13.5 Governing Law and Jurisdiction

This agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in San Francisco County, California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

13.6 Assignment

Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of TTC. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

13.7 Export Regulation

The API may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the API to, or make the API accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the API available outside the US.

13.8 US Government Rights

The API is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer receives only those rights with respect to the API as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.

13.9 Equitable Relief

Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 6 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

13.10 Counterparts

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.