These Developer API Terms of Service (the “Agreement”) govern access and use of the application programming interfaces, related tools, documentation, and services (collectively, the “API”) offered by Palm Finance, Inc. (“Palm”). We refer to our website, app, platforms, subdomains and other services collectively as the “Service.” Please read this Agreement carefully before using the API and the Service. This Agreement also incorporates Palm’s Terms of Use and includes an arbitration clause and class action waiver that applies to you and the organization (including any parent organization, subsidiaries, and/or sister companies) you represent that you have the authority to bind (“Client”). Please read the Terms and this Agreement carefully as they may significantly affect your legal rights, including your right to file a lawsuit in court.
Licensee acknowledges and agrees that use of the API and/or Service in a production environment will not be enabled until Palm has completed its verification of Licensee, which may include identity verification, compliance checks, and review of Licensee’s intended use of the API. Palm may withhold, condition, or revoke access to production API keys in its sole discretion if Palm determines that Licensee has not satisfied applicable verification requirements, presents a security or compliance risk, or fails to comply with this Agreement. Access to any sandbox, testing, or evaluation environment does not guarantee that production access will be granted.
BY ACCESSING OR USING THE API OR SERVICE, OR BY CLICKING “ACCEPT” OR “SUBMIT”, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU,” “YOUR,” “YOURS,” “CLIENT” OR “LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, ARE BECOMING A PARTY TO THIS “AGREEMENT, AND ARE HEREBY REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE. SUBMISSION OF ANY ORDER FORM (INCLUDING AN ONLINE ORDER FORM) OR SIMILAR DOCUMENT THAT REFERENCES THIS AGREEMENT AND THAT IS ACCEPTED BY PALM (EACH, AN “ORDER FORM”), SHALL IN EACH CASE ALSO CONSTITUTE ASSENT TO THIS AGREEMENT. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PALM’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY PALM SHALL BE DEEMED TO BE MUTUALLY EXECUTED.
IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCESS OR USE THE SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.
Definitions. Below are a few key terms to keep in mind.
“Client Service” means Client’s applications, products, and services.
“End User” means a user that accesses the API or the Service through a Client Service for such user’s own benefit.
“Licensee Content” means any information, data, text, or other materials that Licensee or End Users upload, submit, transmit, display, post, store, or otherwise make available through the Service, including through the API or the Client Service.
“Licensee” means Client.
“Permitted Purpose” means using the API to make the Service available to End Users solely for Client’s internal business in connection with the Client Service.
“Palm Data” means any information, data, text or other content provided by or on behalf of Palm to Licensee about an individual End User.
“Palm Website” means the website located at https://getpalm.com/.
1. API, SERVICE AND PALM DATA LICENSE; RESTRICTIONS
1.1. License. Subject to the terms and conditions and conditional upon your compliance at alltimes with this Agreement, Palm hereby grants Licensee a non-exclusive, non-transferable,non-sublicenseable, revocable, and limited right and license during the Term to access and use theService, API and Palm Data, and to permit End Users to access and use the API, Service and PalmData, in each case, solely for the Permitted Purpose and in accordance with any providedDocumentation (documentation means any information regarding the API and Service that aredelivered by Palm to Licensee in any form, including any updates to such documentation providedby Palm from time to time). You may not sell, rent, lease, sublicense, redistribute, or syndicateaccess to the Service, API and/or Palm Data.
1.2. Responsibilities. Licensee is solely responsible for the acts or omissions of Licensee andeach End User in connection with their use of the API and Service. Licensee’s agreements with EndUsers must: (i) be no less protective of Palm’s rights and ownership than this Agreement; (ii) notgrant greater use or access rights to the Service or API than those rights, licenses and permissionsdescribed in this Agreement; (iii) require the parties to agree that Palm and its licensors shall nothave any direct or indirect liability to any End Users; (iv) include substantially and materially similarrestrictions to those set forth below with respect to the Service and API to the extent applicable;and (v) obtain from End Users any and all necessary rights to enable Licensee to grant the license toPalm set forth below with respect to Licensee Consent. Licensee shall use best efforts to enforce allthe limitations, restrictions and protections in this Agreement with respect to End Users. Licenseeagrees to use commercially reasonable efforts to prevent unauthorized access to or use of the APIand to promptly notify Palm of any such unauthorized access or use. Licensee accepts and assumesall responsibility for complying with all applicable laws and regulations in connection with all ofLicensee’s and End Users activities involving the API, the Service, or Palm Data. Licensee furtheragrees to use the API and Service only in accordance with this Agreement, all other applicableterms and policies, and any provided Documentation.
1.3. Independent Contractors. Nothing in this Agreement shall be construed as creating orconstituting a partnership, joint venture or agency between the Parties. Each Party shall be deemedan independent contractor with respect to each other in fulfilment of their obligations.
1.4. Updates and Modifications. Licensee understands and agrees that the specifications for theAPI and the Service shall be defined by Palm in its sole discretion, and Licensee is responsible for itsdevelopment and other costs associated with Licensee’s use of the API. Palm reserves the right tomodify, change, update, enhance, and/or discontinue the API, the Service, and/or any PalmWebsite (each a “Modification”) at any time in Palm’s sole and exclusive discretion. Licenseeacknowledges and agrees that such Modifications may affect Licensee’s and End Users’ ability toaccess the Service and may require Licensee to make changes to the Client Service’s interface withthe API. Palm shall not be liable for any costs incurred by Licensee arising out of or in connectionwith any Modification.1.5. API Usage Limitations. If at any time Palm determines, in its sole discretion, that the volumeof API calls from Licensee or your use of the API could threaten the stability, performance, orsecurity of the Services, Palm may temporarily impose and enforce limits on your access to the APIor terminate such access. Such limits may include restrictions on the volume, frequency, or methodof API usage, or any other measures Palm deems necessary to prevent excessive, abusive, orotherwise prohibited use. You agree not to exceed, bypass, or attempt to bypass any such limits,including by aggregating accounts, creating multiple API or End Users, or otherwise manipulatingusage. You also agree to provide Palm with reasonable API usage forecasts upon request and topromptly notify Palm if your actual or anticipated usage materially exceeds your estimates at anypoint during a calendar year.
1.6. Non-interference. You will not, and you will not permit or enable any End User, or otherthird party to interfere with the proper operation of the API or Service. You may not create,distribute, or use any service or application that degrades, disrupts, or otherwise adversely affectsthe functionality or performance of the API, the Services, or the services of Palm’s affiliates,partners, or users.
1.7. License Restrictions.
1.7.1. Except as expressly permitted hereunder, Licensee shall not, and shall require that EndUsers do not (i) use any method to access or use the Service other than as permitted through theAPI, (ii) provide the API or access to the Service to any third parties other than End Users, (iii) permitor enable third parties to copy or obtain the API or access to the Service in any manner notexpressly authorized in this Agreement, (iv) access or use the API or Service, in any manner thatviolates applicable laws, (v) license, sell, re-sell, rent, lease, transfer, assign, reproduce, distribute, oralter the API, Service or any portion of the API or Service, or permit or enable any third parties to doso; (vi) use the Service, the API, or any documentation or other materials received from Palm inconnection with this Agreement, to develop a product or service that competes with the Service;(vii) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reversecompile or reverse engineer, or otherwise attempt to discover the source code or underlyingalgorithms of any part of the Service or API except to the extent the foregoing restrictions areexpressly prohibited by applicable law; (viii ) cache, store, or collect personal information throughthe API or the Service, except as expressly permitted; (ix) remove or destroy any copyright noticesor other proprietary markings contained on or in the Service or API; (x) access or use the API orService in any manner that could disable, overburden, damage, disrupt or impair the API or Serviceor interfere with any other party’s access to or use of the API or Service or use any device, softwareor routine that causes the same; (xi) attempt to gain unauthorized access to, interfere with, damageor disrupt the API or Service, accounts registered to other users, or the computer systems ornetworks connected to the API or Service; (xii) circumvent, remove, alter, deactivate, degrade orthwart any technological measure or content protections of the API or Service; (xiii) use any robot,spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts,“mines,” scrapes, extracts, or otherwise accesses the API or Service to monitor, extract, copy orcollect information or data from or through the API or Service; or (xiv) introduce any viruses, trojanhorses, worms, logic bombs or other materials that are malicious or technologically harmful intoPalm’s systems.
1.8. Publicity and Marketing Rights. Licensee grants Palm a non-exclusive, non-transferable,royalty-free, perpetual license to use Licensee’s name, trademarks, service marks and logos(“Licensee Marks”) in Palm’s marketing, advertising, promotional materials, press releases,customer lists, presentations, case studies, investor communications, websites, social media, andother public or private communications for the purpose of identifying Licensee as a customer ofPalm. Licensee further grants Palm the right to create, publish and distribute case studies,marketing content, and testimonials (including written, audio, or video formats) featuring Licenseeand/or Licensee Content, without the need for further approval. Licensee shall provide reasonablecooperation in connection with such publicity and marketing efforts. All goodwill arising fromPalm’s use of the Licensee Marks shall inure solely to the benefit of Licensee.
2. OWNERSHIP; LICENSES; THIRD-PARTY MATERIALS
2.1. Palm Ownership. As between Palm and Licensee, Palm retains all rights, title and interest inand to all intellectual property rights embodied in or pertaining to the API, Service, Palm Data, PalmWebsite, and Palm Marks (as defined below), and all improvements, modifications, enhancements,and derivative works of any of the foregoing. There are no implied licenses under this Agreement,and any rights not expressly granted to Licensee hereunder are reserved by Palm or its licensors.Licensee shall not take any action inconsistent with Palm’s ownership of the API, Service, Palm Data,Palm Website, and Palm Marks.
2.2. Licensee Content. As between Palm and Licensee, to the extent permitted by applicable law,Licensee grants Palm a perpetual, irrevocable, worldwide, non-exclusive, sublicensable (throughmultiple tiers of sublicensees) royalty-free, fully paid right and license to Licensee Content to use,copy, host, store, transfer, display, perform, reproduce, modify, adapt, create derivative works of,and otherwise use in any form or medium for any purpose permitted under applicable law,including to improve the usability, functionality, and accuracy of the API, Service and the PalmWebsite.
2.3. Trademark License. Palm hereby grants Licensee a limited, revocable, non-exclusive,non-transferable, non-sublicensable, royalty-free license to use Palm’s trademarks, service marks,and logos (collectively “Palm Marks”) during the Term on Licensee’s websites or promotionalmaterials solely to (i) attribute Palm as the provider of the Service and (ii) otherwise advertise andpromote the availability of access to the Service in the Client Service. Licensee agrees to use thePalm Marks only in a form identified by Palm in writing for use hereunder and in accordance withPalm Marks Requirements and such quality standards as may be reasonably established by Palmand communicated to Licensee from time to time in writing. Licensee shall obtain Palm’s priorwritten approval of any material change in the style and manner in which any of the Palm Marksare proposed to be used. Licensee shall not use the Palm Marks in a manner that disparages Palmor its products or services, portrays Palm in a false, competitively adverse or poor light, or dilutesthe Palm Marks. Except as expressly provided, Palm reserves all right, title, and interest in and tothe Palm Marks. All goodwill arising from Licensee’s use of the Palm Marks shall inure to the benefitof Palm.
2.4. Feedback. Licensee agrees that submission of any ideas, suggestions, documents,proposals or other feedback provided to Palm (“Feedback”) is at Licensee’s own risk and that Palmhas no obligations (including obligations of confidentiality) with respect to such Feedback. Licenseerepresents and warrants that it has all rights necessary to submit the Feedback. Licensee herebygrants to Palm a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive,transferrable, and fully sublicensable right and license to use, reproduce, perform, display,distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in anymanner, any and all Feedback without restriction of compensation.
2.5. Data Privacy and Security.
2.5.1. Licensee Content. Licensee represents and warrants that (i) before any End User mayengage with the API or Service, Licensee shall ensure that it provides all notices and obtains allconsents required under applicable law to enable Palm to process Licensee Content in accordancewith Palm’s Privacy Policy (currently available at https://getpalm.com/privacy); (ii) it has sufficientrights, consents, and permissions to grant the licenses to Palm set forth above and to input theLicensee Content into the Service and (iii) the Licensee Content does not infringe, misappropriate,or otherwise violate any third party’s intellectual property rights, privacy rights, rights of publicity,moral rights, or other proprietary rights. Licensee shall not (i) make representations or otherstatements with respect to Licensee Content that are contrary to or otherwise inconsistent withPalm’s Privacy Policy or (ii) interfere with any independent efforts by Palm to provide End Usernotice or obtain End User consent.
2.5.2. Palm Data. Palm Data shall only be used for the Permitted Purpose and Licensee shalldelete or de-identify all Palm Data promptly when (i) it is no longer reasonably necessary for thePermitted Purpose, (ii) the Agreement terminates or expires, or (iii) an End User revokes orwithdraws consent or otherwise selects that Palm Data may no longer be shared with Licensee.Licensee shall implement and maintain appropriate technical and organizational measures toensure such deletion across its active systems and, to the extent feasible, backups and archiveswithin a commercially reasonable period of time. Licensee shall delete all Palm Data in accordancewith any provided Documentation (meaning any documentation and information regarding the APIand Service that are delivered by Palm to Licensee in any form, including any updates to such documentation provided by Palm from time to time). Licensee shall be responsible for obtainingEnd User consent directly for any use of End User information or data outside of the PermittedPurpose, and for honoring End User requests regarding access, deletion, or restriction of theirinformation.To the extent that End User submits any information or data directly to Licensee,Licensee shall be solely responsible for ensuring that Licensee’s use of that data is in compliancewith any applicable laws and Licensee’s own stated privacy policy.
2.5.3. Data Breach. Licensee must notify Palm immediately upon verification of anunauthorized acquisition, modification, disclosure, access to, or loss of Palm Data in connection withyour use of the API or Service. Licensee agrees to collaborate with Palm on creating a notificationand remediation strategy in the event of such occurrence.
2.5.4. Licensee Security. Licensee agrees to maintain comprehensive, industry-standardinformation security and data privacy policies and procedures designed to protect Licensee Contentand Palm Data. Upon Palm’s request, Licensee will provide Palm with the results of any securityaudits it conducts, including any SOC-2 or comparable audits. Licensee will ensure that its use ofPalm’s API transmits and receives data using protocols at least as secure as those supported by thePalm API and that includes safeguards to prevent unauthorized access, interception, or disclosure ofPalm Data. Licensee agrees to periodically assess the security of its use of the API to ensure itremains free of defects and vulnerabilities, and will share the results of such assessments with Palmupon request. Palm may require that such security assessments be completed before grantingaccess to the API or at any time thereafter if Palm reasonably determines it is necessary to protectthe security of the API, Service, or Palm Data. Licensee further agrees not to attempt to circumventor disable any security measures or technical limitations imposed by Palm or the API. Any breach ofthis Section shall constitute a material breach of this Agreement, and Palm shall be entitled to seekall available remedies at law or in equity, including without limitation compensatory and punitivedamages, in the Northern District of California, which shall have exclusive jurisdiction over suchdisputes.
2.5.5. Palm reserves the right, upon reasonable notice, to audit Licensee’s use of the API, PalmData, and the Service to verify compliance with this Agreement. Licensee shall cooperate with suchaudits and promptly remedy any identified non-compliance.
2.6. Third Party Services. Licensee acknowledges and agrees that: (i) the Service may incorporatecertain information, data, and materials from third party providers (collectively, “Third PartyServices”), including without limitation through integrations or connectors to such Third PartyServices that are provided by Palm; (ii) Third Party Services may only be used in conjunction with theService; and (iii) Licensee’s use of the Third Party Services hereunder shall be subject to (andLicensee agrees it is bound by) the third party terms and conditions referenced at such third party’ssite. Palm does not make any representations or warranties with respect to Third Party Services orany third party providers. Palm cannot and does not guarantee that the Service shall incorporate(or continue to incorporate) any particular Third Party Services.
3. FEES
3.1. Fees. As consideration for the use of the API and Service by Licensee and End Users,Licensee shall pay Palm the fees set forth on the Order Form (if any) (“Fees”). Unless otherwise setforth on the Order Form, at the end of each calendar month, Palm shall deliver to Licensee aninvoice for the Fees for such calendar month. Licensee shall pay Palm the amounts set forth in suchinvoice within the time period set forth in the Order Form or, if no time period is set forth in theOrder Form, within thirty (30) days of Licensee’s receipt of such invoice. Any amounts due to Palmunder this Agreement not received by the date due shall be subject to a late charge of 1.5% permonth, or the maximum charge permitted by law, whichever is more. All payments amounts duehereunder shall be paid in U.S. dollars. Please further review the payment terms in the Terms of Useas they shall govern.
4. TERM AND TERMINATION
4.1. Term. This Agreement shall commence upon Licensee’s first use of the API and/or Serviceand shall continue for the term set forth on the Order Form, or if the Order Form does not specify aterm, one month (the “Initial Term”), unless earlier terminated in accordance herewith. Followingthe Initial Term, this Agreement shall automatically renew for successive renewal terms ofequivalent length to the Initial Term each (each, a “Renewal Term”, and together with the InitialTerm, the “Term”), unless either party gives the other party notice of non-renewal at least thirty (30)days prior to the end of the Initial Term or then-current Renewal Term (as applicable).
4.2. Termination. Palm may terminate this Agreement, in whole or in part, at any time, with orwithout cause, in Palm’s sole discretion, effective immediately upon written notice to Licensee. Palmshall have no liability to Licensee or any third party arising from or related to any such termination,including for any costs, losses, damages, or expenses incurred by Licensee. Without limiting theforegoing, Palm may terminate this Agreement immediately upon written notice to Licensee (a) ifLicensee breaches any warranty, representation, covenant, or obligation under this Agreement; or(b) Palm and/or Licensee is subject to a dissolution, receivership, liquidation, insolvency,conservatorship, consolidation, reorganization, sale of substantially all of its assets, cessation ofbusiness, voluntary or involuntary bankruptcy. Palm may also suspend Licensee’s or any End User’saccess to the API or Service or terminate this Agreement if (i) required to do so by law, (ii) to preventa security risk or other credible risk of harm or liability to Palm, the Service, the API, or any thirdparties, or (iii) Palm otherwise determines, in its sole discretion, that continued performance of thisAgreement is no longer desirable. Upon termination of this Agreement for any reason, all rightsgranted to Licensee under this Agreement shall immediately cease, and Licensee shall immediatelydiscontinue use of the API, Service, and Palm Data, and delete all Palm Data in its possession.
4.3. Effect of Termination; Survival. The provisions of Sections 1, 2, 4, 5, 6.2, 7, 8, 9, 10 and 11shall survive any expiration or termination of this Agreement. All other rights and obligations of theparties shall cease upon expiration or termination of this Agreement, and Licensee shall cease useof the API, Service and Palm Data as of the effective date of termination.
5. CONFIDENTIAL INFORMATION
5.1. Confidential Information. Licensee and their respective affiliates, directors, officers,employees, authorized representatives, agents and advisors (including attorneys, accountants,consultants, bankers and financial advisors) shall keep confidential all non-public information,know-how, trade secrets, and/or proprietary information concerning Palm’s business procedures,present and future products, services, operations, marketing materials, fees, technology, policies orplans that is received or obtained in connection with this Agreement, whether such information isoral or written, and whether or not labeled as confidential by Palm (collectively “ConfidentialInformation”).
5.2. Use of Confidential Information. Licensee shall take reasonable steps, at least substantiallyequivalent to the steps it takes to protect its own proprietary information, to prevent the use,duplication or disclosure of Confidential Information other than in accordance with this Agreement.Licensee shall not disclose, share, rent, sell or transfer to any third party any ConfidentialInformation unless expressly permitted by this Agreement, and shall use Confidential Informationonly as necessary to perform under this Agreement.
5.3. Remedies. Upon termination of this Agreement, Licensee shall promptly return allConfidential Information in its possession, and shall promptly destroy such materials containingsuch information (and any copies, extracts, and summaries thereof) and shall further provide Palmwith written confirmation of such return or destruction upon written request. In the event Palmdiscovers that Confidential Information has been used in an unauthorized manner or disclosed inviolation of this Agreement, shall be entitled to pursue all remedies available at law or equity,including injunctive relief.
6. LIMITED REPRESENTATIONS AND WARRANTIES
6.1. General. Each party represents and warrants that (i) it is a duly incorporated or organizedentity in its state of incorporation or organization and that it has the full power and authority toenter into and perform its obligations under this Agreement; (ii) the execution and performance byit of its obligations under this Agreement do not constitute a breach of or conflict with any otheragreement or arrangement by which it is bound; (iii) this Agreement is a legal, valid and bindingobligation of the party executing this Agreement; (iv) no consent or approval of any other party isrequired in connection with the execution, delivery, performance, or enforceability of thisAgreement; and (v) it shall comply with all applicable laws, rules, and regulations in connection withperformance of such party’s obligations under this Agreement.
6.2. Warranty Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SETFORTH IN THIS SECTION, THE API, SERVICE, AND PALM DATA ARE EACH PROVIDED “AS IS” ANDPALM AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS,IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES FOR TITLE, NON-INFRINGEMENT,MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANYWARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. PALM DOES NOTREPRESENT OR WARRANT THAT (I) THE PALM WEBSITE, THE API, OR THE SERVICE SHALL MEETLICENSEE’S REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHERCHARACTERISTICS OF THE API AND SERVICE); (II) LICENSEE’S OR ITS USERS’ USE OF THE API ANDSERVICE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) THE ADVICE,RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICEOR API SHALL BE ACCURATE OR RELIABLE. LICENSEE ACKNOWLEDGES THAT THE SERVICE MAYINCLUDE THIRD PARTY SERVICES AND THAT PALM IS NOT LIABLE, AND LICENSEE AGREES NOT TOSEEK TO HOLD PALM LIABLE, FOR ANY THIRD PARTY SERVICES, AND THAT THE RISK OF INJURYFROM SUCH THIRD PARTY SERVICES RESTS ENTIRELY WITH LICENSEE. LICENSEE ACKNOWLEDGESAND AGREES THAT PALM IS NEITHER A “CONSUMER REPORTING AGENCY” NOR A “FURNISHER” OFINFORMATION TO CONSUMER REPORTING AGENCIES UNDER THE FAIR CREDIT REPORTING ACT(“FCRA”) AND THE SERVICE DOES NOT RESULT IN A “CONSUMER REPORT” UNDER THE FCRA ANDCANNOT BE USED AS OR IN SUCH. LICENSEE REPRESENTS AND WARRANTS THAT IT SHALL NOT,AND SHALL NOT PERMIT OR ENABLE ANY THIRD-PARTY TO, USE THE SERVICE AS A OR AS PART OF A“CONSUMER REPORT” AS THAT TERM IS DEFINED IN THE FCRA OR OTHERWISE USE THE API ORSERVICE SUCH THAT THE API OR SERVICE WOULD BE DEEMED “CONSUMER REPORTS” UNDER THEFCRA.
7. NO DAMAGES
IN NO EVENT SHALL PALM HAVE ANY LIABILITY TO LICENSEE FOR ANY DAMAGES WHATSOEVER,INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, ORCONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, DATA OR USE, HOWEVERCAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, WHETHER ORNOT LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. LIMITATIONS ON LIABILITY
8.1. General Damages. To the maximum extent permitted by law, Palm will not be liable toLicensee in relation to this Agreement or the Service whether in contract, negligence, strict liability,tort or other legal or equitable theory, for losses, damages, or costs exceeding in the aggregate thegreater of (i) the total amount of fees you paid to Palm during the one month period preceding anydispute or claim; and (ii) five-hundred dollars.
9. INDEMNIFICATION
Licensee agrees to indemnify, defend and hold harmless Palm, and parents, subsidiaries, affiliates,officers, employees, agents, partners, suppliers, and licensors, from and against any and allthird-party losses, costs, liabilities, and claims (including reasonable attorneys’ fees) relating to or arising out of (a) Licensee’s or End User’s use or misuse of the API, Service, Palm Data or intentionalmisconduct; (b) Licensee’s violation of this Agreement; (c) Licensee’s or End User’s violation of anyapplicable law, rule or regulation; (d) the Licensee Content or Licensee’s violation of any otherparty’s right, including without limitation any right of privacy or intellectual property rights; and (e)the Client Service. Palm shall provide the Licensee: (a) prompt notice of any claim alleged pursuantto this section; (b) the sole right to control defense and settlement of such claim; and (c) atLicensee’s sole expense, any and all assistance, information and documentation required by Licensee in its investigation, defense, settlement or release of any such action or proceeding,including execution of any document or filing reasonably related there to. Licensee may not enterinto any settlement or compromise of any such claim without prior written consent of Palm, whichshall not be unreasonably withheld, except any settlement of a claim that resolves such claimwithout liability to Palm, impairment to any of the Palm’s rights, or requiring Palm to make anyadmission of liability. Notwithstanding the foregoing, Palm reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification byLicensee, in which event Licensee shall fully cooperate with Palm in asserting any availabledefenses.
10. DISPUTE RESOLUTION/ARBITRATION AGREEMENT
10.1. Disputes. By mutual consultation, the parties shall attempt to resolve any dispute, claimor controversy (“Dispute”) arising from or related to this Agreement through the designatedrepresentative of each Party, except where injunctive or declaratory relief is sought.
10.2. Binding Arbitration. Any Dispute brought by Licensee against Palm and/or itssubsidiaries, affiliates, and/or any of their respective members, officers, directors and employeesshall be resolved exclusively by final, binding arbitration, if such Dispute is not resolved by mutualconsultation within thirty (30) days. Licensee acknowledges and agrees that it is giving up its rightto go to court and have any dispute heard by a judge or jury. This Agreement constitutes Licensee’swritten agreement to arbitrate any dispute under the Federal Arbitration Act to be administered bythe American Arbitration Association (“AAA”) under its Commercial Arbitration Rules. To begin anarbitration proceeding, Licensee must notify Palm of its intent to commence arbitration. The noticemust specify the date on which the arbitration demand is intended to be filed, which must be atleast 30 days after the date of notice. In addition, Licensee unconditionally agrees that (1) thearbitrator’s decision shall be controlled by this Agreement and any of the other agreements and/orterms referenced herein that you may have entered into in connection with the Service; (2) thearbitrator shall apply California law consistent with the FAA and applicable statutes of limitations,and shall honor claims of privilege recognized at law; and (3) in the event the AAA is unavailable orunwilling to hear the dispute, Licensee and Palm shall agree to, or a court shall select, anotherarbitration provider. Palm may, at its sole discretion, elect to resolve any Dispute in arbitration or inany court of competent jurisdiction, including the state or federal courts located in the NorthernDistrict of California.
10.3. No Class Action Matters. Licensee and Palm each agree to bring any Dispute against theother in their respective individual capacities and not as a plaintiff or class member in anypurported class, representative proceeding or as an association. In addition, each Party agrees thatdisputes shall be arbitrated only on an individual basis and not in a class, consolidated, orrepresentative action and that the arbitrator may award relief (including injunctive relief) only on anindividual basis. The arbitrator does not have the power to vary these provisions.
10.4. Choice of Law and Forum; No Jury Trial. If for any reason a Dispute proceeds in courtLicensee and Palm agree that any dispute may only be instituted in federal court in San Francisco,California/Northern District of California. Licensee and Palm both irrevocably consent and submit tothe exclusive personal jurisdiction and venue of such courts for resolution of such Disputes andagree to waive any right to a trial by jury. The Federal Arbitration Act, the AAA rules, applicablefederal law, and the laws of the State of California, without regard to principles of conflicts of law,will govern any disputes.
11. MISCELLANEOUS
11.1. Assignment. Licensee may not assign this Agreement without the prior written consent ofPalm. Subject to the foregoing limitation, this Agreement is binding upon and inures to the benefitof the successors and assigns of the respective parties hereto.
11.2. Third Party Beneficiaries. This Agreement is not intended and shall not be construed tocreate any rights or benefits upon any person not a party to this Agreement.
11.3. Compliance with Law. Licensee shall at all times comply with all applicable international,federal, state and local laws and shall not engage in any illegal or unethical practices. Withoutlimiting any of the foregoing, Licensee agrees that it shall not permit the use of the Service or APIor Palm Data, export, or re-export the Service or API or Palm Data, (a) into, or to or for the benefit ofa national or resident of, any country to which the United States has embargoed goods, or (b) toanyone on the United States Treasury Department’s list of Specially Designated Nationals or theU.S. Commerce Department’s Table of Denial Orders, or license or otherwise permit use of theService or API or Palm Data for any activities involving nuclear materials or weapons, missile orrocket technologies, proliferation of chemical or biological weapons, or any other purposeprohibited by applicable law or in any jurisdiction where the Service is prohibited.
11.4. Notices. Except as otherwise provided, all notices under this Agreement shall be deliveredby email. Notices shall be deemed to have been given at the time of delivery when delivered byemail.
11.5. Force Majeure. Palm and its affiliates will not be liable for any losses, damages, delays orcosts suffered to the extent caused by a Force Majeure event.
11.6. Provisions Severable. If any provision of this Agreement shall be or become wholly orpartially invalid, illegal or unenforceable, such provision shall be enforced to the extent that it islegal and valid and the validity, legality and enforceability of the remaining provisions shall in noway be affected or impaired. This Agreement shall be binding upon and inure to the benefit of theparties hereto and their respective successors, legal representatives and permitted assigns.
11.7. Waivers; Cumulative Remedies. No failure or delay by a party to insist upon the strictperformance of any term or condition under this Agreement or to exercise any right or remedyavailable under this Agreement at law or in equity, shall imply or otherwise constitute a waiver ofsuch right or remedy, and no single or partial exercise of any right or remedy by any party shallpreclude exercise of any other right or remedy. All rights and remedies provided in this Agreementare cumulative and not alternative; and are in addition to all other available remedies at law or inequity.
11.8. Modifications to the Agreement. Palm reserves the right to change these terms at any time.Any updated versions of this Agreement will appear on the Site and are effective immediately. Youare responsible for regularly reviewing this Agreement. Continued use after any such changesconstitutes your consent to such changes.
