Subject to your full compliance with all of Terms, Viggle Inc. (Viggle) grants Licensee a non-exclusive, revocable, nonsublicensable, nontransferable license to download and use the API solely in connection with Licensee’s mobile or website application (App) and to access data from Viggle in connection with such application. The Licensee’s App must be accessible from show pages within Viggle’s application. Licensee may not install or use the API for any other purpose without Viggle’s prior written consent. In addition, before you access the API, your App is subject to Viggle’s prior written consent, which Viggle may grant or deny in its sole and absolute discretion. You may request such consent by following the steps in our app submission and approval process. This Agreement does not entitle Licensee to any support and/or upgrades for the APIs, unless Licensee makes separate arrangements with Viggle. Licensee further acknowledges that Viggle is under no obligation to provide access to Licensee’s App within the Viggle application.
Licensee shall not use the API in connection with or to promote any products, services, or materials that constitute, promote or are used for the purpose of dealing in any of the following:
- spyware, adware, or other malicious programs or code,
- counterfeit goods,
- items subject to U.S. embargo,
- unsolicited mass distribution of email (spam),
- multi-level marketing proposals,
- hate materials,
- libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content,
- prostitution, body parts and bodily fluids,
- stolen products and items used for theft,
- fireworks, explosives, or hazardous materials,
- government IDs or police items,
- non-transferable items such as airline tickets, or
- weapons and accessories.
In addition, Licensee agrees that:
- Licensee’s application will comply with all laws,
- Licensee’s application will not infringe on any intellectual property or other proprietary rights of any third party,
- Licensee will only request through the API the data it needs to operate its application, and the Licensee will make it transparent to the user what information it is retrieving and what it will use the data for,
- Licensee will obtain explicit consent from the user for the uses described in subsection (iv) above,
- Licensee will not provide any information it receives through the API with any ad network, data broker or other similar third party, even if a user consents; provided, that this limitation is not intended to limit your ability to display ads on your App,
- Licensee will not sell any data it receives through the API,
- If Licensee ceases operation of its application, it must delete all of the data it has received through the API, and
- If a user so requests, the Licensee will delete all of the data you have received through the API.
In addition, your App must be directed to users who are 13 years of age and older, and, not in limitation of any of the foregoing requirements, your App must comply with the Children’s Online Privacy Protection Act in all respects.
2. LOGOS AND BRANDING.
Licensee agrees to the following: (a) it will not remove, obscure, disrupt and/or alter in any way Viggle branding credit without prior written permission by Viggle; and (b) it may not otherwise use the Viggle logo without prior written permission from Viggle.
3. PROPRIETARY RIGHTS.
As between Viggle and Licensee, the API and all intellectual property rights in and to the API are and shall at all times remain the sole and exclusive property of Viggle and are protected by applicable intellectual property laws and treaties. Except for the limited license expressly granted herein, no other license is granted, no other use is permitted and Viggle shall retain all right, title and interest in and to the API and the Viggle logos and other intellectual property.
4. OTHER RESTRICTIONS.
Except as expressly authorized under this Agreement, Licensee may not, without Viggle’s prior written consent: (i) copy, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the API; (ii) otherwise use the API on behalf of any third party; (iii) sell or otherwise receive compensation, without the prior written consent of Viggle, in connection with any product incorporating the API where such product contains no additional original, substantive functionality outside of the API; provided, that the foregoing limitation is not intended to prohibit you from displaying ads in your App; or (iv) enable, require or cause any user to purchase an item or service as a condition to continue use of the API.
5. WARRANTY DISCLAIMER.
THE API IS PROVIDED AS IS WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, VIGGLE, ITS AFFILIATED COMPANIES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND VENDORS (THE VIGGLE PARTIES) EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE API INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, VIGGLE DISCLAIMS ANY WARRANTY THAT LICENSEE’S USE OF THE API WILL BE UNINTERRUPTED OR ERROR FREE.
6. LIABILITY LIMITATION.
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL ANY OF THE VIGGLE PARTIES BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE API, EVEN IF VIGGLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, THE VIGGLE PARTIES DISCLAIM ALL LIABILITY OF ANY KIND OF VIGGLE’S VENDORS. IN ADDITION, LICENSEE HEREBY AGREES THAT THE TOTAL AMOUNT OF ALL LIABILITIES OF THE VIGGLE PARTIES HEREUNDER WILL NOT EXCEED THE AMOUNTS PAID BY THE LICENSEE TO VIGGLE IN THE SIX MONTHS PRECEDING THE DATE OF THE CLAIM.
Licensee agrees that Viggle shall have no liability whatsoever for any use Licensee makes of the API. Licensee shall indemnify and hold harmless Viggle from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising from Licensee’s use of the API. Licensee acknowledges that Viggle is under no obligation to make the API available to it. Accordingly, the disclaimers of warranties, limitations of liability and indemnities set forth herein are fair and reasonable under the circumstances and are an essential basis of the bargain between Viggle and the Licensee.
8. TERM AND TERMINATION.
Either party may terminate this Agreement at any time, for any reason, or for no reason. Any termination of this Agreement shall also terminate the license granted hereunder. Upon termination of this Agreement for any reason, Licensee shall immediately cease and desist from any new distributions of the API to third parties. Additionally, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the API, and shall so certify to Viggle that such actions have occurred. Viggle shall have the right to inspect and audit Licensee’s facilities to confirm the foregoing. Sections 3 through 11 and all accrued rights to payment shall survive termination of this Agreement.
9. EXPORT CONTROLS.
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (OFAC), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the API in violation of any such restrictions, laws or regulations. By downloading or using the API, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
10. MODIFICATIONS TO THIS AGREEMENT.
Viggle reserves the right, in its sole discretion, to modify this Agreement at any time by posting an update to this Agreement on Viggle.com. You shall be responsible for reviewing and becoming familiar with any such modification. Such modifications are effective upon first posting or notification and use of the Viggle API by Licensee following any such notification constitutes Licensee’s acceptance of the terms and conditions of this Agreement as modified.
Unless the parties have entered into a written amendment to this agreement that is signed by both parties regarding the Viggle API, this Agreement constitutes the entire agreement between Licensee and Viggle pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Viggle, any action or proceeding arising from or relating to this Agreement must be brought settled by binding arbitration conducted by the American Arbitration Association in New York County, New York; provided, however, that either party may seek equitable relief in a Court of competent jurisdiction. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys’ fees. This Agreement may be amended only by a writing executed by Viggle. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Viggle to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Viggle’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Viggle’s prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Viggle expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.