This Mosaix API Agreement (“Agreement”) is a legally binding agreement between SayMosaic Inc. (“SayMosaic”) and the person agreeing to these terms (“You” and “Your”). If you use or are engaging in activities under this agreement for a business or corporate entity (“Company”), whether as an employee or contractor, the term “You” includes, and the terms and conditions hereof are binding on, both you as an individual as well as such Company. In addition, you represent and warrant that you have the authority to bind such company, and that such company has authorized you to accept the terms of this agreement on its behalf.
SayMosaic is willing to provide a license to its API and API materials (each defined below) to you only on the condition that you accept, agree to and comply with all of the terms and conditions in this agreement. By clicking that you accept these terms of by using the API, you acknowledge and agree that you have read this agreement, understand it and agree to be bound by its terms and conditions. If you do not agree to these terms and conditions you will not access, and will ensure that your contractors will not access, any API materials.
1. DEFINED TERMS. In addition to other terms that may be defined herein, the following terms, when capitalized and in singular or plural form, as appropriate, will have the meanings set forth as follows:
1.1 “Affiliates” means any present or future corporation or other Entity that controls, is controlled by or is under common control with a party (where control means (i) ownership of more than 50% of the shares, equity interest or other securities entitled to vote for election of directors, or (ii) the authority to direct management).
1.2 “API” means an application programming interface that SayMosaic provides or otherwise makes available to You in connection with the other API Materials or the Mosaix Service provided hereunder.
1.3 “API Materials” means each API and all Documentation and Software, collectively.
1.4 “Application” means each software application You develop, or have developed on Your behalf by Your Contractor(s), with or in connection with the API Materials, which application is intended to be distributed for download or installation by end users for use on
electronic devices or other consumer products.
1.5 “Contractor” means Your independent contractor who develops or distributes an Application on Your behalf and who agrees to be bound by the terms of this Agreement.
1.6 “Documentation” means documentation that SayMosaic provides or otherwise makes available to You in connection with the Solution.
1.7 “Entity” means any corporation, general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, limited liability company, firm, association, organization, or other legal entity.
1.8 “Mosaix Service” means the digital platform provided by SayMosaic that allows end users of an Application to interact with the Application and to search for and access information on their devices, using the sound of their voices or text search.
1.9 “Intellectual Property Rights” means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, right of privacy, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now or hereafter come into existence and all renewals and extensions thereof, worldwide.
1.10 “Key” means a unique alpha-numeric code, issued by SayMosaic, specific to a particular Application that enables a particular feature or set of features in such Application.
1.11 “Site” means the SayMosaic website located at http://www.saymosaic.com.
1.12 “Software” means (i) the software provided to You by SayMosaic and licensed under this Agreement, including the software development kit(s) for: certain features, related libraries and headers and certain sample application(s) in human readable (source code) form or binary form; and (ii) additional software, if any, that SayMosaic provides to You relating to the Mosaix Service. The contents of the Software may vary by feature and for platform specific versions.
2. LICENSE GRANTS.
2.1 API Key. Before accessing the API Materials You must first request a Key. A Key will be generated for You when You provide the information requested for signing up a new Application. You may reproduce and distribute the Software in object code form solely as part of Your Application only if You have obtained a Key. Each Key issued may only be used with a single Application. You may be required to go through an approval process in order to obtain a Key. SayMosaic may, in its sole discretion, withhold its approval, and decline to provide You a Key for any reason or no reason. SayMosaic has the right to monitor Your use of the Key and Your Application to ensure Your use is in compliance with this Agreement (a "Permitted Purpose”). If used other than for a Permitted Purpose, in accordance with Section 13.1, SayMosaic has the right to immediately revoke the Key.
2.2 License to API. Subject to and conditioned upon Your compliance with the terms and conditions set forth in this Agreement, SayMosaic hereby grants to You a personal, non-exclusive, non-sublicenseable (except as set forth below in Section 2.3), non-transferable, revocable license during the Term (defined below), to access and use the API Materials in accordance with the Documentation and this Agreement solely for the purposes of developing and testing an Application for use with the API and making the Application available to the public.
2.3 Sublicense Rights. Subject to and conditioned upon Your compliance with the terms and conditions of this Agreement, SayMosaic hereby grants to You a personal, non-exclusive, non-sublicenseable, non-transferable, revocable license, during the Term to sublicense the license rights set forth in Section 2.2 solely to Your Contractors for the sole purpose of developing and distributing Applications on Your behalf, provided that (i) any sublicense rights granted to any such Contractor by You pursuant to this Section 2.3 may be granted on a single tier basis only, without further sublicense rights; and (ii) You will be responsible and liable for the acts and omissions of Your Contractors, including their compliance with this Agreement, as if such acts or omissions were Your own acts or omissions.
2.4 Preview Releases. Previews are provided "as-is," "with all faults," and "as-available," and are excluded from the SLAs and all limited warranties provided in this agreement. Previews may not be covered by customer support. We may change or discontinue Previews at any time without notice. We also may choose not to release a Preview into general availability.
2.5 Copies. In addition to any rights expressly provided above, subject to and conditioned upon Your compliance with the terms and conditions of this Agreement, You may, and You may permit Your Contractors to, make a reasonable number of copies of the Software only for backup purposes, provided that You (or Your Contractors, as the case may be) reproduce all copyright and other proprietary notices that are on the original copy of the Software. You will not, and will ensure that Your Contractors do not make more copies of the Software than specified in this Agreement.
2.6 Third Party Programs. The Software may contain third party programs, including software licensed under open source terms. The license terms associated with those programs apply to Your use of them, and in some instances such programs cannot be used or further distributed without a license from the respective owner of such programs. The delivery of the Software does not convey a license, nor imply any rights, to use third party programs. A separate and independent license for such use may be required and You are solely responsible (i) to verify whether such license is needed in conjunction with Your use of such third party programs and (ii) for obtaining any necessary license from such owner with respect to any such use.
2.7 Retention of Rights. The API Materials are licensed and not sold to You. You acknowledge and agree that nothing in this Agreement will convey, assign or otherwise transfer to You, Your Affiliates or Your Contractors any title or ownership rights in any part of the API Materials or the Mosaix Service.
3. PROVISION OF API.
3.1 SayMosaic reserves the right to modify the API and the API Materials, and to release subsequent versions of the API, in accordance with the remainder of this Section 3. You acknowledge and agree that You may be required to obtain and use the most recent version of the API in order for Your Application to continue to function with the API and the Mosaix Service.
3.2 In the event of an emergency, critical failure, suspected critical failure, loss of license or a security breach, without limiting any other right of SayMosaic hereunder, SayMosaic reserves the right to modify, suspend or discontinue the API and the Mosaix Service at any time without notice or liability to You.
3.3 In all other cases not covered by Section 3.2 above, should SayMosaic elect to modify or suspend the API due to a planned change, it will use commercially reasonable efforts to give You no less than 5 business days’ written notice of any such modification or suspension.
3.4 You agree to provide SayMosaic with access to Your Application and other materials related to Your use of the API as reasonably requested by SayMosaic in order for SayMosaic to verify Your compliance with this Agreement. You agree that SayMosaic may survey Your Application and You will not block or interfere with such efforts.
3.5 SayMosaic has no obligation to provide users or end users of Your Application with support, software upgrades, enhancements or modifications to the API. You acknowledge and agree that You are solely responsible for providing user and end-user support and any other technical assistance for Your Application.
4.1 Permissions. You represent and warrant to SayMosaic that You have obtained and will maintain all necessary rights, permissions and licenses, if any, in content, material, data, Recordings or code appearing, used, stored, recorded or displayed in or using any of the Applications and that the Applications will be in full compliance with all terms of applicable platform requirements (e.g., terms imposed by Apple and Google on developers and parties utilizing their respective technology platforms, marketplaces, etc.). If You are using third party IDs or other third party services or offerings (each, a “Third Party Service”) to interact with the API Materials or Mosaix Service, You must at all times be in compliance with all agreements, policies and other terms applicable to use of those Third Party Services.
4.2 Application Restrictions. You agree that You will not, and Your Contractors will not, directly or indirectly:
4.2.1 modify, adapt, translate, decompile, disassemble, reverse engineer, reverse assemble, analyze or otherwise examine, prepare derivative works of, modify, or attempt to derive source code from the Mosaix Service or API;
4.2.2 include any viruses, worms, Trojan horses or any other harmful code that could, in SayMosaic’s sole discretion, affect the Mosaix Service or API Materials;
4.2.3 copy, distribute, reproduce, sell, resell, lend, lease, rent, use, or allow access to the Mosaix Service or API Materials except as explicitly permitted under this Agreement;
4.2.4 use any content available through the API to populate any other sites, applications or services or to create a service substantially similar to the Mosaix Service;
4.2.5 interfere or attempt to interfere in any manner with the proper functioning of the Mosaix Service or API;
4.2.6 use the Mosaix Service or API for any illegal or unauthorized purpose, including the unlawful distribution of the API Materials or the infringement, violation or misappropriation of any third party’s Intellectual Property Rights or other proprietary rights;
4.2.7 remove, obscure or alter any notice of patent, copyright, trademark or other proprietary right appearing on the Mosaix Service or in any API Material;
4.2.8 access any undocumented feature of the API, or use any documented feature of the API other than for its intended purpose;
4.2.9 attempt to conceal Your personal identity or Your Application’s identity when requesting authorization to use the API;
4.2.10 knowingly use the Mosaix Service or API in a manner that adversely impacts the stability of SayMosaic’s servers or the Mosaix Service or adversely impacts the performance of the Mosaix Service or API for other clients or applications using the Mosaix Service or API, in SayMosaic’s sole determination;
4.2.11 use the API in such a way that knowingly harms, misuses or brings into disrepute the Mosaix Service or SayMosaic’s brands, trademarks, logos or names;
4.2.12 exceed the amount of bandwidth, storage or processing power as determined by SayMosaic in its sole discretion or use the API in a manner that exceeds any quota limitations as set by SayMosaic in its sole discretion;
4.2.13 include content or materials (text, graphics, images, photographs, video, sounds, etc.) in Your Application that comprise, constitute or depict any of the following: (i) profanity, nudity, pornographic or obscene images or explicit sexual themes; (ii) defamatory, libelous, racist or discriminatory statements; (iii) material that is unnecessarily violent or dangerous to use; or (iv) material that is illegal or objectionable;
4.2.14 conduct any benchmark or stress tests, cause or permit automated queries on the API or publish any performance data relating to the API or the Mosaix Service.
4.3 License to SayMosaic. You hereby grant to SayMosaic and SayMosaic’s Affiliates a non-exclusive, royalty-free, worldwide license during the Term under all of Your Intellectual Property Rights, to use, reproduce, display, and execute all of Your Applications for (i) internal review and the development and testing of the API; and (ii) demonstrations of such API, its capabilities or functionalities, to third parties. Further, SayMosaic and its Affiliates may display in any media whatsoever Your name, the name of the Applications and any marks or logos associated with the Applications for purposes of marketing and promoting Your Application and the products and services of SayMosaic and its Affiliates.
4.4 Mandatory End-User License Agreement Clauses. You will include, in a mandatory end-user license agreement for each of Your Applications, whether in an agreement between You and an end user (where You license Your Application directly to end users) or in an agreement between You and the licensor/distributor of Your Application (where the licensor/distributor is a Contractor), legally enforceable provisions that are appropriate to Your Application, that obtain all necessary licenses, rights, consents, and permissions (in the Recordings and otherwise) from the end user of the Application and that comply with all applicable laws, rules and regulations, and that include:
4.4.1 All terms, disclosures and information necessary to comply with the terms of this Agreement;
4.4.2 Each end user’s consent to the collection, processing, storage and use by SayMosaic and its Affiliates and service providers of data from the API and the transfer of data to and between SayMosaic and its Affiliates and service providers (which may be in the United States or in other countries), in each case for the purposes of (i) providing the Mosaix Service to You and Your end users, (ii) facilitating the provision of new products, updates, enhancements and other services, (iii) improving the API and the Mosaix Service, and (iv) providing new products, services or technologies to You, Your end users and customers of SayMosaic and its Affiliates;
4.4.3 Each Application end user’s grant to SayMosaic of an irrevocable, perpetual, non-exclusive, transferable, royalty-free, sublicensable, worldwide license during the term of the agreement between You (or, as applicable, the licensor/distributor of Your Application, where You are a Contractor) and that end user, to use, modify, reproduce, publicly display, publicly perform, distribute, store, collect, copy, transmit, transfer, process and make derivative works of that user’s Recordings, including: (i) to provide the Mosaix Service, (ii) to facilitate the provision of new products, updates, enhancements and other services, (iii) to improve the API and the Mosaix Service, and (iv) to provide new products, services or technologies to You, Your end users and customers of SayMosaic and its Affiliates;
4.4.4 An advisory to the end user that Your Application may incur data usage charges in varying amounts, based on variable factors which include the number of interactions of Your Application with the Solution (as defined in Section 10.1); and
4.5 You hereby consent and agree to receive updates about products and services, promotions, special offers, news and events from SayMosaic, SayMosaic Affiliates and other third parties by email, regular mail, text, phone or other electronic means.
5.1 Pricing. Certain features of the Mosaix Service may require You to pay fees. Before You pay any fees, You will have an opportunity to review and accept the fees that You will be charged. All fees are non-refundable. For those features that require payment of fees, You agree to pay SayMosaic the fees specified on the pricing page made available at https://www.mosaix.ai/#pricing (“Pricing Page”). All fees payable to SayMosaic must be paid in accordance with the terms and conditions contained on the Pricing Page. SayMosaic will make reasonable efforts to keep pricing information published on the Pricing Page up to date. SayMosaic encourages You to check the Pricing Page periodically for current pricing information. SayMosaic may change the fees for any feature of the Mosaix Service, including additional fees or charges, if SayMosaic gives You advance notice of changes before they apply. SayMosaic, at its sole discretion, may make promotional offers with different features and different pricing to any of SayMosaic’s customers. These promotional offers, unless made to You, will not apply to Your offer or this Agreement. Except as otherwise provided on the Pricing Page, any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. You will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by SayMosaic to collect any amount that is not paid when due. All amounts payable under this Agreement are denominated in United States dollars, and You will pay all such amounts in United States dollars. You agree that SayMosaic may suspend Your access to the Mosaix Service if You fail to timely pay fees due to SayMosaic.
5.2 Authorization. You authorize SayMosaic to charge all sums for the orders that You make and any paid feature of the Mosaix Service that You select as described in this Agreement or published by SayMosaic, to the payment method specified in Your account. If You pay any fees with a credit card, SayMosaic may seek pre-authorization of Your credit card account prior to Your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover Your purchase.
5.3 Subscription Service. Paid features of the Mosaix Service may be structured to include automatically recurring payments for periodic charges (“Subscription Service”). If You activate a Subscription Service, You authorize SayMosaic to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when You purchase Your first subscription to the Mosaix Service. For information on the “Subscription Fee,” please see the Pricing Page. Your account will be charged automatically on the Subscription Billing Date all applicable fees for the next subscription period. The subscription will continue unless and until You cancel Your subscription or SayMosaic terminates it. You must cancel Your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to Your account. SayMosaic will bill the periodic Subscription Fee to the payment method You provide to us during registration (or to a different payment method if You change Your payment information). You may cancel the Subscription Service by clicking the “unsubscribe” link in Your account or by contacting us at: firstname.lastname@example.org.
5.4 Delinquent Accounts.You must not, and must ensure that Your Contractors do not, access or use for any purpose any API other than such APIs as are expressly described in the Documentation.
6. SOFTWARE RESTRICTIONS
6.1 The licenses to the Software granted to You hereunder are solely for the limited purposes set forth in Section 2 (License Grants). The Software, including the Documentation, shall not be used for any other purpose or use.
6.2 Except as expressly permitted in Section 2, You must not, and must ensure that Your Contractors do not, reproduce, distribute, publicly perform, publicly display or create derivative works of or based on the Software, or disclose, rent, lease, loan, provide or otherwise transfer, in any manner, to any third party the Software, Documentation or any portion thereof.
6.3 Excepting any portions of the Software provided to You in source code format, and excepting any third party code distributed with the Software that is licensed under contrary terms, You will not reverse engineer, disassemble, decompile or translate the Software or any portion thereof, or otherwise attempt to derive the source code version of the Software, except if and to the extent expressly permitted under any applicable law. If applicable law expressly permits such activities, any information so discovered or derived shall be deemed to be the confidential proprietary information of SayMosaic and must be promptly disclosed by You to SayMosaic.
6.4 You must not, and must ensure that Your Contractors do not, access or use for any purpose any API other than such APIs as are expressly described in the Documentation.
6.5 You must not, and must ensure that Your Contractors do not, use the Software to create or develop any developer tools (including plug-ins and middleware) or any software other than end-user targeted Applications.
6.6 You must not, and must ensure that Your Contractors do not, use any part of the Solution to do anything which degrades or otherwise negatively impacts SayMosaic’s product or services.
6.7 You must not, and You must ensure that Your Contractors do not, incorporate, link, distribute or use any third party software or code in conjunction with (i) the Software (ii) any software, products, documentation, content or other materials developed using the Software, or (iii) any derivative works that You make using the source code portions of the Software (if any), in such a way that: (a) creates, purports to create or has the potential to create, obligations with respect to the Software, including the distribution or disclosure of any source code; or (b) grants, purports to grant or has the potential to grant to any third party any rights to or immunities under any Intellectual Property Rights or proprietary rights of SayMosaic or its Affiliates, including as such rights exist in or relate to the Software. Without limiting the generality of the foregoing, You must not, and You must ensure that Your Contractors do not, incorporate, link, distribute or use (1) the Software, (2) any software, products, documentation, content or other materials developed using the Software
8. FEEDBACK. You agree to report promptly to SayMosaic all bugs You or Your Contractor encounter with the API or Software, along with Your logs, steps to reproduce such bugs, and experiences regarding the performance and use of the Mosaix Service. All data, feedback and other information related to or in connection with the API however learned and by whomever collected or provided (collectively, “API Performance Data”), are, as between SayMosaic and You, the confidential and proprietary information of SayMosaic and subject to Section 9 (Confidentiality). API Performance Data may be used by SayMosaic for any purpose at any time (including after the Term) without payment or attribution to You.
8. Privacy; Data Collection and Use.
8.1 Data, Non-Interference and Right to Use. You understand that the API may collect and send certain data to SayMosaic (hereinafter “Data”). You understand and agree that You, and entities working on Your behalf, will not alter, surveil, intercept, inhibit, direct or otherwise interfere with the transmission of Data to SayMosaic and its Affiliates in connection with the API. You further agree that You and those working on Your behalf, will not directly access any Data that is stored in a private data store by the API Materials on an end user’s device, apart from any access provided by SayMosaic. You agree that SayMosaic may use the Data: (a) to provide the API and the Mosaix Service to You and Your end users, (b) to improve, optimize, troubleshoot and create bug fixes for the API, and (c) for SayMosaic’s business purposes, including: (i) facilitating the provision of new products, updates, enhancements and other services, (ii) improving the Mosaix Service, and (iii) providing new products, services or technologies to You, Your end users, and customers of SayMosaic and its Affiliates. SayMosaic will make commercially reasonable efforts to cooperate with You so that You can satisfy any obligations You may have to Your end users under applicable data privacy laws concerning access, correction and deletion rights. If You elect to receive third party information or content (such as restaurant reviews, weather information, etc.) in connection with Your use of the Mosaix Service, You understand that SayMosaic may share Your contact information with the third party providers of the information and content that You receive.
9. CONFIDENTIALITY. You hereby acknowledge and agree that the API Materials, API Performance Data and all related information, are, as between you and Soundhound, confidential and proprietary to SayMosaic. Except as expressly permitted in this Agreement, You will not, and will ensure that Your Contractors do not, disclose, or permit the disclosure of, any confidential or proprietary information of SayMosaic in any form or any information relating thereto to any third party without SayMosaic’s prior written permission. You may not use any SayMosaic confidential or proprietary information for any purpose except to the extent expressly permitted in this Agreement. You further acknowledge and agree that any unauthorized use or disclosure of the API Materials and such other SayMosaic confidential or proprietary information may cause irreparable harm and significant injury to SayMosaic that would be difficult to ascertain or quantify. Accordingly, You agree that SayMosaic will have the right without posting bond or proof of future damages to seek and obtain injunctive or other equitable relief to enforce the terms of this Agreement and without limiting any other rights or remedies that SayMosaic may have.
10. REPRESENTATIONS; DISCLAIMER OF WARRANTIES
You represent and warrant that you have validly entered into the Contract and have the legal power to do so.
10.1 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE APIS, DOCUMENTATION AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED BY US ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE APIS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
10.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL SAYMOSAIC, ITS AFFILIATES, SERVICE PROVIDERS, LICENSORS OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH OR RELATED TO THIS AGREEMENT OR ANY DOWNLOAD, INSTALLATION OR USE OF, OR INABILITY TO USE, THE SOLUTION, EVEN IF SAYMOSAIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SAYMOSAIC’S CUMULATIVE LIABILITY ARISING FROM THE SERVICES, PRODUCTS AND SOFTWARE PROVIDED HEREUNDER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, INDEMNIFICATION, CONTRIBUTION OR OTHERWISE, WILL BE LIMITED TO THE DIRECT DAMAGES RECOVERABLE UNDER LAW, BUT NOT TO EXCEED $50 USD OR THE EQUIVALENT THEREOF IN ANY OTHER CURRENCY. YOU HEREBY RELEASE SOUNDHOUND, ITS AFFILIATES, SERVICE PROVIDERS, LICENSORS AND EACH OF THEIR RESPECTIVE AFFILIATES, FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. ALL CLAIMS BY YOU, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, MUST BE BROUGHT WITHIN TWO YEARS FROM THE DATE THE CAUSE OF ACTION ACCRUES. THIS LIMITATION OF LIABILITY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. This provision applies notwithstanding any contrary provision in this Agreement.
11. INDEMNITY. You agree to indemnify and hold harmless SayMosaic, its Affiliates and licensors, and each of their respective officers, directors, employees, agents and successors and assigns (each, a “SayMosaic Indemnitee”), from and against any and all claims, actions, suits, demands, causes of action, losses, liabilities, damages, costs and expenses, incurred or otherwise suffered by each SayMosaic Indemnitee (including to costs of defense, investigation and reasonable attorneys’ fees) arising out of, resulting from or related to (i) the download, installation, duplication, storage, execution, display, performance, making of derivative works, use or distribution or transfer of any Application or related documentation or any content or materials or derivative works or products used by or in the Applications by any person or entity (except and solely to the extent such infringement is directly caused solely by the unmodified API Materials, or portions thereof, as supplied to You by SayMosaic under this Agreement); (ii) the collection, processing, storage or use of Recordings by, or transfer of Recordings to, a SayMosaic Indemnitee, Affiliate or service provider; (iii) any breach of this Agreement, including in particular any breach of Section 4.3 or Section 8, by You or Your Contractors; or (iv) any use, reproduction or distribution of the API Materials, as modified or integrated by You, or by Your Contractor on Your behalf, that causes an infringement of any patent, copyright, trademark, trade secret or other intellectual property, publicity or privacy right of any third parties arising in any jurisdiction anywhere in the world (except and solely to the extent such infringement is directly caused solely by the unmodified API Materials, or portions thereof, as supplied to You by SayMosaic under this Agreement). If and as requested by SayMosaic, You agree to defend, at Your cost, each SayMosaic Indemnitee in connection with any third party claims, demands or causes of action resulting from, arising out of or in connection with any of the foregoing; provided that You will not settle any claim, action or suit without the prior written consent of SayMosaic. SayMosaic HAS NO OBLIGATION TO DEFEND, INDEMNIFY OR HOLD YOU OR YOUR CONTRACTORS HARMLESS UNDER THIS AGREEMENT.
12. USE OF NAME AND TRADEMARKS. The API Materials may embed the trade names, trademarks, service marks, logos domain names and other distinctive brand features of SayMosaic, its Affiliates or third parties (“Marks”). When such attribution is embedded, such as a “powered by” logo included in the user interface or when otherwise required by SayMosaic, You must, and You will ensure that Your Contractors, display it as provided or otherwise described in the API Materials or other instructions provided by SayMosaic and may not delete or in any manner alter these Marks. Except as set forth in the preceding sentence, You will not, and will ensure that Your Contractors do not, display or make any use of SayMosaic or its Affiliates’ names, marks or logos in connection with the Application without the prior written approval of SayMosaic. All permitted uses of the Marks must be in accordance with SayMosaic’s trademark usage guidelines (as may be updated from time to time by SayMosaic), available from SayMosaic upon written request. You will not, and You will ensure that Your Contractors do not, display the Marks in any manner that falsely expresses or implies that the Application or any content transmitted via the Application is sponsored or endorsed by SayMosaic. SayMosaic has the right to monitor the quality of all of Your Applications and has the right to take all action that it deems necessary to ensure that Your activities under and uses of the Marks are consistent with the reputation for quality and prestige of products bearing and service performed under the Marks.
13. Term and Termination; Survival.
13.1 Term and Termination. This Agreement will be effective upon acceptance by You and will continue until terminated as provided herein (the “Term”). You may terminate the Agreement at any time by deleting and destroying all copies of the API Materials, API Performance Data and all related information in You or Your Contractor’s possession or control. The licenses granted to You by SayMosaic will terminate immediately and automatically, with or without notice, if You or Your Contractor fail to comply with any provision hereof. Additionally, SayMosaic may at any time terminate this Agreement, either with or without cause, upon notice to You.
13.2 Survival. Sections 1 (Defined Terms); 2.7 (Retention of Rights); 5 (Fees), 7 (Feedback); 8 (Privacy; Data Collection and Use); 9 (Confidentiality); 10 (Disclaimer of Warranties; Limitation of Liability); 11 (Indemnity); 13 (Term and Termination; Survival); and 14 (Governing Law; Venue) through 20 (Miscellaneous) will survive the termination of this Agreement.
14. GOVERNING LAW; VENUE. This Agreement is governed by and interpreted in accordance with the laws of the state of California, United States of America, without giving effect to its conflict of laws provisions. Except as set forth in Section 16 (Dispute Resolution), any claim, lawsuit or proceeding arising out of or related to this Agreement must be brought exclusively in the state or federal courts of Santa Clara, California and You hereby consent to the exclusive jurisdiction and venue of such courts.
15. SEVERABILITY. If any provision (or portion of a provision) of this Agreement will be held to be illegal, invalid or unenforceable, the legality, enforceability or validity of the remaining provisions (or portion of the applicable provision) of this Agreement will not be affected.
16. DISPUTE RESOLUTION. If You are an individual or Entity whose official place of residency or formation is outside of the United States, all disputes, controversies or claims arising out of, relating to or in connection with this Agreement including the determination of the scope of the Agreement to arbitrate, will be finally settled by arbitration in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL”), applicable at the time of submission of the dispute to arbitration, and the following will apply:
16.1 The American Arbitration Association (“AAA”) will be the Appointing Authority and will appoint a single arbitrator. The arbitration case will be administered by the AAA in accordance with its “Procedures for Cases Under the UNCITRAL Arbitration Rules” (“Rules”). The place of arbitration will be San Jose, California, and the exclusive language to be used for the arbitral proceedings will be English.
16.2 Nothing herein will prevent SayMosaic, prior to appointment of the arbitrator, from making application to any court of competent jurisdiction, for any provisional remedy available at law or in equity. Such application for relief will not constitute a waiver of this Agreement to arbitrate. Upon appointment, the arbitrator will have exclusive authority to order provisional or interim relief, except that any relief ordered by the arbitrator may be immediately and specifically enforced by a court otherwise having jurisdiction. You waive objection to venue and consent to the personal jurisdiction of the state or federal courts of Santa Clara, California, U.S.A. in any action to enforce this Agreement to arbitrate or any order or award of the arbitrator, or for the provisional or interim remedies provided for herein.
16.3 Discovery will be limited to written requests for the production of specific documents. The period for requesting documents will be 60 days commencing upon the day that the answer is due under the Rules. The responding party will have 30 days to produce the requested documents by sending copies to the requesting party or its representative via a recognized international courier service. Each party will also voluntarily produce all documents that they intend to use at the arbitration hearing and a list of intended witnesses before the close of discovery subject to supplementation for purposes of rebuttal or good cause shown. Each party hereby waives any right to seek any discovery not provided for in this Agreement irrespective of whether the laws of any country provide for different or additional discovery in international arbitration. The arbitrator will hold a pre-hearing conference within three days of the close of discovery and will schedule and hold the final hearing within 30 days of the close of discovery. YOU HEREBY AGREE THAT THE ARBITRATION PROCEDURE PROVIDED HEREIN WILL BE THE SOLE AND EXCLUSIVE METHOD OF RESOLVING ANY OF THE AFORESAID DISPUTES, CONTROVERSIES OR CLAIMS.
17. EXPORT COMPLIANCE ASSURANCES. The Mosaix software and API are subject to U.S. export jurisdiction. You must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments.
18. COMPLIANCE WITH LAWS. You will, and will ensure that Your Contractors will, abide by all applicable local, state, national, and foreign laws, treaties and regulations in connection with Application(s) and Your use of the API, including those related to privacy, data security, and data collection, international communications, and the transmission of technical or personal data.
19. NO THIRD PARTY RIGHTS. The parties agree and confirm their mutual intention that neither this Agreement nor any of the terms of this Agreement will be enforceable by any person or entity not a direct party to it. Notwithstanding that any term of this Agreement may be or may become enforceable by a person who is not a party to this Agreement, the terms and conditions of this Agreement may be modified or amended, or this Agreement may be suspended, cancelled, rescinded or terminated by the parties as provided in Section 20.3 without the consent of any such third party.
20.1 Entire Agreement. This Agreement constitutes the entire and exclusive agreement between SayMosaic and You with respect to the API, the API Materials, and the Mosaix Service and supersedes all prior agreements (whether written or oral) and other communications between SayMosaic and You with respect to the API Materials.
20.2 No Assignment. You will not, and will ensure that Your Contractors do not, delegate, transfer or assign this Agreement or any of the rights, duties or obligations hereunder (whether voluntarily, by operation of law or otherwise) without SayMosaic’s prior written consent. Any attempted assignment, transfer or other delegation without such consent will be null and void and will constitute a material breach. SayMosaic may assign this agreement at any time without obtaining Your consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors, transferees, and assignees.