Webgility Terms of Service for the Webgility Connect platform services

Thank you for selecting the Services offered by Webgility Inc. and/or its subsidiaries and affiliates (referred to as "Webgility", "we", "our", or "us"). Review these Terms of Service ("Agreement") thoroughly. This Agreement is a legal agreement between you and Webgility. By accepting electronically (for example, clicking “I Agree”), installing, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then you may not use the Services.

A. GENERAL TERMS

1. AGREEMENT

This Agreement describes the terms governing your use of the Webgility online services provided to you on this website, including content, updates and new releases, (collectively, the “Services”). It includes by reference:

  • Webgility's Privacy Statement provided to you in the Services available on the website or provided to you otherwise.
  • Additional Terms and Conditions, which may include those from third parties.
  • Any terms provided separately to you for the Services, including product or program terms, ordering, activation, payment terms, etc.

2. YOUR RIGHTS TO USE THE SERVICES

2.1 The Services are protected by copyright, trade secret, and other intellectual property laws. You are only granted the right to use the Services and only for the purposes described by Webgility. Webgility reserves all other rights in the Services. Until termination of this Agreement and as long as you meet any applicable payment obligations and comply with this Agreement, Webgility grants to you a personal, limited, nonexclusive, nontransferable right and license to use the Services

2.2 You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or this Agreement. You agree you will not:

  • Provide access to or give any part of the Services to any third party.
  • Reproduce, modify, copy, deconstruct, sell, trade or resell the Services.
  • Make the Services available on any file-sharing or application hosting service..

3. PAYMENT.

For Services offered on a payment or subscription basis, the following terms apply, unless Webgility notifies you otherwise in writing. This Agreement also incorporates by reference and includes program ordering and payment terms provided to you on the website for the Services:

a. Payments will be billed to you in U.S. dollars, and your account will be debited when you subscribe and provide your payment information, unless stated otherwise in the program ordering or payment terms on the website for the Services.

b. You must pay with one of the following:

  1. A valid credit card or debit card acceptable to Webgility;
  2. A valid debit card acceptable to Webgility;
  3. or
  4. 3. By another payment option Webgility provides to you in writing.

c. If your payment and registration information is not accurate, current, and complete and you do not notify us promptly when such information changes, we may suspend or terminate your account and refuse any use of the Services.

d. If you do not notify us of updates to your payment method (e.g., credit card expiration date), to avoid interruption of your service, we may participate in programs supported by your card provider (e.g., updater services, recurring billing programs, etc.) to try to update your payment information, and you authorize us to continue billing your account with the updated information that we obtain.

e. Webgility will automatically renew your monthly, quarterly, or annual Services at the then-current rates, unless the Services are cancelled or terminated under this Agreement.

f. Additional cancellation or renewal terms may be provided to you on the website for the Services.

4. USE WITH YOUR MOBILE DEVICE

Use of these Services may be available through a compatible mobile device, Internet access and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider.

WEBGILITY MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO:

  • THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION;
  • ANY LOSS, DAMAGE, OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES; AND
  • ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTINGS CONNECTED WITH THE SERVICES.

5. YOUR PERSONAL INFORMATION.

You can view Webgility’s Privacy Statement provided with the Services and on the website for the Services. You agree to the applicable Webgility Privacy Statement, and any changes published by Webgility. You agree that Webgility may use and maintain your data according to the Webgility Privacy Statement, as part of the Services. You give Webgility permission to combine information you enter or upload for the Services with that of other users of the Services and/or other Webgility services. For example, this means that Webgility may use your and other users’ non-identifiable, aggregated data to improve the Services or to design promotions and provide ways for you to compare business practices with other users. Webgility is a global company and may access or store personal information in multiple countries, including countries outside of your own country to the extent permitted by applicable law.

6. CONTENT

6.1 You are responsible for your content. You are responsible for all materials ("Content") uploaded, posted or stored through your use of the Services. You grant Webgility a worldwide, royalty-free, non-exclusive license to host and use any Content provided through your use of the Services. Archive your Content frequently. You are responsible for any lost or unrecoverable Content. You must provide all required and appropriate warnings, information and disclosures. Webgility is not responsible for the Content or data you submit through the Services.

You agree not to use, nor permit any third party to use, the Services to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:

a. Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage "flaming" others, or criminal or civil liability under any local, state, federal or foreign law;

b. Content that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy;

c. Except as permitted by Webgility in writing, investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;

d. Virus, trojan horse, worm or other disruptive or harmful software or data; and

Any information, software or Content which is not legally yours and without permission from the copyright owner or intellectual property rights owner.

6.2 Community forums. The Services may include a community forum or other social features to exchange Content and information with other users of the Services and the public. Webgility does not support and is not responsible for the content in these community forums. Please use respect when you interact with other users. Do not reveal information that you do not want to make public. Users may post hypertext links to content of third parties for which Webgility is not responsible.

6.3 Webgility may freely use feedback you provide. You agree that Webgility may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant Webgility a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to Webgility in any way.

6.4 Webgility may monitor your Content. Webgility may, but has no obligation to, monitor content on the Services. We may disclose any information necessary to satisfy our legal obligations, protect Webgility or its customers, or operate the Services properly. Webgility, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.

7. ADDITIONAL TERMS

7.1 Webgility does not give professional advice. Unless specifically included with the Services, Webgility is not in the business of providing legal, financial, accounting, tax, health care, real estate or other professional services or advice. Consult the services of a competent professional when you need this type of assistance.

7.2 We may tell you about other Webgility services. You may be offered other services, products, or promotions by Webgility ("Webgility Services"). Additional terms and conditions and fees may apply. With some Webgility Services you may upload or enter data from your account(s) such as names, addresses and phone numbers, purchases, etc., to the Internet. You grant Webgility permission to use information about your business and experience to help us to provide the Webgility Services to you and to enhance the Services. You grant Webgility permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. You also grant Webgility permission to share or publish summary results relating to research data and to distribute or license such data to third parties.

7.3 Communications. Webgility may be required by law to send you communications about the Services or Third Party Products. You agree that Webgility may send these communications to you via email or by posting them on our websites

7.4 You will manage your passwords and accept updates. You are responsible for securely managing your password(s) for the Services and to contact Webgility if you become aware of any unauthorized access to your account. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Services. You agree to receive these updates.

8. DISCLAIMER OF WARRANTIES

8.1 YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WEBGILITY, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY,"SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SERVICES ARE FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. WEBGILITY AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.

8.2 WEBGILITY, ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.

9. LIMITATION OF LIABILITY AND INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF WEBGILITY, ITS AFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, WEBGILITY, ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET WEBGILITY SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF WEBGILITY AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF WEBGILITY, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICES AND ITS USE.

You agree to indemnify and hold Webgility and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Services or breach of this Agreement (collectively referred to as "Claims"). Webgility reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Webgility in the defense of any Claims.

10. CHANGES. We reserve the right to change this Agreement at any time, and the changes will be effective when posted through the Services, on our website for the Services or when we notify you by other means. We may also change or discontinue the Services, in whole or in part. Your continued use of the Services indicates your agreement to the changes.

11. TERMINATION. Webgility may immediately, in its sole discretion and without notice terminate this Agreement or suspend the Services if you fail to comply with this Agreement or if you no longer agree to receive electronic communications. Upon termination you must immediately stop using the Services and any outstanding payments will become due. Any termination of this Agreement shall not affect Webgility’s rights to any payments due to it. Webgility may terminate a free account at any time. Sections 2.2, 3 through 15 will survive and remain in effect even if the Agreement is terminated.

12. EXPORT RESTRICTIONS. You acknowledge that the Services, including the mobile application, and the underlying software may include U.S. technical data subject to restrictions under export control laws and regulations administered by the United States government. You agree that you will comply with these laws and regulations, and will not export or re-export any part of the Services, in violation of these laws and regulations, directly or indirectly.

13. GOVERNING LAW. California state law governs this Agreement without regard to its conflicts of laws provisions.

14. DISPUTES. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SERVICES OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply California law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND WEBGILITY ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.

To begin an arbitration proceeding, send a letter requesting arbitration and describing your claim to Webgility Inc. in care of Parag Mamnani, CEO, 301 Howard Street, Suite 950, San Francisco, CA 94105. Arbitration will be conducted by the American Arbitration Association (AAA) before a single AAA arbitrator under the AAA’s rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees and costs will be governed by the AAA's rules, but if you are unable to pay any of them, Webgility will pay them for you. In addition, Webgility will reimburse all such fees and costs for claims totaling less than $75,000 unless the arbitrator determines the claims are frivolous. Likewise, Webgility will not seek its attorneys’ fees or costs in arbitration unless the arbitrator determines your claims or defenses are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The decision of the arbitrator shall be final and not appealable, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. This Section 14 shall survive expiration, termination or rescission of this Agreement.

15. GENERAL. This Agreement, including the Additional Terms below, is the entire agreement between you and Webgility and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone without written approval of Webgility. However, Webgility may assign or transfer it without your consent to (a) an affiliate, (b) a company through a sale of assets by Webgility or (c) a successor by merger. Any assignment in violation of this Section shall be void. If you want to request a transfer of this Agreement, contact Webgility via an email to: partnersupport@webgility.com.

January 2014

B. ADDITIONAL TERMS AND CONDITIONS FOR THE WEBGILITY CONNECT PLATFORM SERVICES

Your use of the Services provided by Webgility are subject to the General Terms of Service above including these Additional Terms and Conditions which govern your use of the Services indicated below. These Additional Terms and Conditions shall prevail over any conflict or inconsistency with the General Terms of Service above.

1. TERRITORY. You understand that your use of the Services and any distribution of an application developed or owned by you as a developer (“Developer Application(s)”) shall be limited solely to authorized countries identified in the applicable Exhibit for the particular Service you want (the “Territory”).

2. SUPPLEMENTAL TERMS FOR WEBGILITY CONNECT PLATFORM and API.
By installing, accessing, or using the Webgility Connect Platform Services or API, you agreed to these terms. If you do not agree to these terms, then you may not use the Webgility Connect Platform Services or API.

  • The Webgility Connect Platform API and any associated documentation, developer tools, software code, modules, libraries, or other materials made available by Webgility with or in connection with the Webgility Connect Platform API (collectively the "API").

  • The Webgility Connect Platform, and any services, features, functionality, or content (excluding End User Data) accessible on or through the Webgility Connect Platform (collectively the “Connect Platform”).

2.1 Use of the API or Service
Development License. Subject to the terms of this Agreement, Webgility grants you a limited, royalty-free, non- assignable, non-transferrable, revocable, personal and non-exclusive license to use and reproduce the API solely to develop or test websites or applications that will access or interface with Connect Platform (“Developer Application”).

Compliance with Connect Platform Requirements and Guidelines. All developers must comply with the Connect Platform Development Requirements and Guidelines which may be updated by Webgility from time to time.

Distribution/ Access. Subject to the terms of this Agreement, you may distribute or provide access to the Developer Application to your end user customers, provided: (i) you do not distribute the application in source code form; (ii) you provide an end user agreement that contains the provisions set forth in Section 12 or Exhibit A, as applicable in all material respects and a privacy policy that is consistent with the terms of this Agreement; (iii) you shall be solely responsible for any liability which may arise from the (a) development, use, or distribution of or access to the Developer Application, including support of the Developer Application; or (b) your access, use, distribution or storage of End User Data; (iv) you shall comply with all applicable local, state, national or international laws or regulations, and policies of regulatory bodies or agencies in the territories that you operate in or market or distribute the Developer Application into, including territories where you collect or gather End User Data from; (v) you do not develop or distribute Developer Application in any way in furtherance of criminal, fraudulent, or other unlawful activity; (vi) you will not make any statements that your Developer Application is “certified,” or has been reviewed by Webgility, or that its performance is guaranteed, by Webgility, and (vii) you will not use Webgility’s name, logo or trademarks to market your Developer Application without prior written permission of Webgility.

Restrictions. You agree that you will not (and will not permit any third party to) directly or indirectly: (a) distribute, sell, lease, rent, lend, or sublicense any part of the API to any third party except as permitted herein; (b) reverse engineer, decrypt, decompile, decode, disassemble, or otherwise attempt to obtain the human readable form of the API; (c) conduct benchmark testing using all or any portion of the API; (d) remove or destroy any copyright notices, proprietary markings or confidential legends placed upon or contained within the API; (e) engage in any activity with the API that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, data, or other properties or services of Webgility or any affiliated third party.

2.2 Access to the Webgility Connect Platform and APIs

Access. Subject to the terms of this Agreement, you may (a) access Connect Platform solely for purposes of developing and testing your Developer Application; and (b) permit your end user customer to access the Webgility Connect Platform solely via the Developer Application.

Restrictions. You agree that you will not (and will not permit any third party to) directly or indirectly use Connect Platform (or any Developer Application that accesses Connect Platform) to upload or otherwise transmit any information, data (including End User Data), text, software, music, sound, photographs, graphics, video, messages or other materials (collectively, “Content”) that violates the terms provided in Section 6. Additionally, you agree that you will not (and will not permit any third party to) directly or indirectly, (a) interfere with or disrupt the performance or integrity of Connect Platform or End User Data; or (b) attempt to gain unauthorized access to Connect Platform, its related servers, network, systems, services, data or any other properties or services of Webgility or any affiliated third party.

End User Data. To the extent your Developer Application receives, obtains, collects, stores or has access to any end user data, including but not limited to personal, business, financial, user names, passwords, email addresses, geo-location data, credit card numbers, social security numbers, account records and anything related or derived from the foregoing (“End User Data”), you agree that you will:

(a) clearly, conspicuously and completely inform the end user of any and all potential uses of their End User Data by you and Webgility and obtain their prior consent for all such uses;

(b) not use or distribute the End User Data for any unauthorized purpose or longer than reasonably required to use the Developer Application; if an end user ceases to consent or revokes consent for use of the End User Data (including termination of the Developer Application), you must promptly cease all use of or access to the End User Data, including, turning off your access to End User Data from Webgility;

(c) not use the End User Data in furtherance of criminal, fraudulent, or other unlawful activity;

(d) not market, sell, transfer or disclose any such End User Data to any third parties, except as expressly permitted by the end user or except as otherwise provided by law;

(e) establish and maintain diligent security measures to prevent unauthorized use or disclosure of End User Data and ensure secure data handling in compliance with all applicable laws, regulations, ordinances, and industry standards, including secure access mechanisms such as SSL based HTTPS connections;

(f) with respect to any user credentials stored locally within the Developer Application, ensure that (i) the account ID is unique for that end user on the Developer Application; (ii) the password has a minimum of 8 characters in length; (iii) 128-bit SSL is used when transferring any password or Account ID over the internet; and (iv) the password is not stored in plain text and is one-way hashed via SHA-256 (or better) and stored only as hashed values;

(g) comply with all applicable Webgility policies, including the Webgility Privacy Policy and Data Steward Principles for Developers (see Exhibit B), which may be updated by Webgility from time to time; and

(h) comply with all applicable data protection laws or regulations regarding the collection, transfer and use of personal data, including but not limited to EU restrictions against transporting or accessing data outside of the EU to countries with “inadequate” protections. Before you host, store, access, process EU personal data outside of the EU, you will, as applicable, obtain U.S. Department of Commerce Safe Harbor certification, sign a model clause contract that allows for the data transfer, and/or developed and obtained acceptance for Binding Corporate Rules that achieve the same purpose. Developer understands and acknowledges that in connection with the Developer Application, if Webgility receives or processes any personal data on behalf of Developer, Webgility may share personal data with its affiliates anywhere in the world. Developer shall notify its end users, and obtain their consent where required by applicable laws.

2.3 Updates and Support

Webgility reserves the right to modify or update the API or Connect Platform or discontinue offering the API and Connect Platform at any time in its sole discretion. If you are dissatisfied with any aspect of the API or Connect Platform at any time, your sole and exclusive remedy is to cease using the API and Connect Platform and terminate this Agreement. Notwithstanding anything contained in this Agreement to the contrary, Webgility may also, in its sole discretion, terminate or suspend access to the Connect Platform to you or any end user at any time, with or without notice.

2.4 Ownership. You acknowledge and agree that Webgility owns all right, title, and interest to the API, Webgility Connect Platform, and confidential information including all intellectual property rights therein. At no point shall you assert or contest Webgility’s exclusive ownership of the foregoing. Except for the express licenses granted herein, no other licenses are granted by Webgility hereunder, by implication, estoppel or otherwise, and all rights not expressly granted herein are reserved by Webgility.

2.5 Open Source. You understand that certain software packages, libraries, or components of the API may be licensed under an open source software license (“Open Source Components”). You understand and acknowledge that your use, reproduction and distribution of any such Open Source Components are governed solely by the terms of the applicable open source software license and not this Agreement.

3. APPLICATION SUBMISSION AND REVIEW. Webgility may require that all new Developer Applications, and updated Developer Applications as defined by Webgility in its sole discretion, be submitted to Webgility for review and approval prior to being made available for distribution. By submitting your Developer Application to Webgility, you grant Webgility and/or its third party affiliate the right to use the Developer Application for purposes of testing and evaluating such Developer Application’s compatibility and suitability for Connect Platform and compliance with the terms of this Agreement. You agree to cooperate with Webgility in the submission process and to answer questions and provide information and materials reasonably requested by Webgility regarding your Developer Application, the operation of your business, or the performance of any of your obligations under this Agreement. You understand and acknowledge that Webgility may, in its sole discretion, reject your Developer Application for any reason, even if such Developer Application complies with all of the then current requirements provided herein. You understand and agree that Webgility shall have no liability for any costs, expenses, and/or damages, including any development or marketing expense and potential lost profits or business opportunities that arise out of or result from Webgility’s review and approval or rejection of such Developer Application or Webgility’s termination of Connect Platform or this Agreement. If you make any changes to the Developer Application, including any patches, upgrades, enhancements, bug fixes, or any modification to the functionality, features, or user interface of your Developer Application, Webgility may require you to re-submit the Developer Application for approval. The fact that Webgility has reviewed, tested, or approved of your Developer Application does not relieve you of any of your obligations under this Agreement.

4. CONFIDENTIALITY AND USE OF PROTECTED INFORMATION.

4.1 Confidentiality. You agree that the API and the Services, and the terms and conditions of this Agreement are the confidential and proprietary information of Webgility (“Confidential Information”).

4.2 Protected Information. The confidentiality provisions of the Agreement shall also govern Webgility’s use of information related to you, your Developer Application or your End User Data (collectively, the “Protected Information”). Notwithstanding the foregoing, you agree that Webgility is permitted to use the Protected Information in accordance with the Permitted Uses set forth below:

(a) Webgility’s Use of Protected Information. You agree that Webgility and a third party subcontractor acting on Webgility’s behalf may: (i) during the term of this Agreement, use any and all Protected Information internally to provide and improve the API, the Services or any other Webgility product/service, provided that neither Webgility nor its third party subcontractor use Protected Information to directly solicit Developer’s end users; (ii) use the Protected Information, with prior notice to you unless prohibited from such notification by subpoena or other lawful order of a court of law enforcement agency, to provide email communication to your end users; (iii) to offer the API or Services or another version of the API or Services after any termination or expiration of this Agreement, subject to any opt-out elections by you or your end users, and all applicable laws and regulations; and (iv) at all times, to the extent permitted by law, use and disclose Protected Information in a manner that: (1) does not reveal any “nonpublic personal information” (nonpublic personal information is defined under subtitle A of Title V of the Gramm-Leach-Bliley Act, 15 USC 6801 et seq and its implementing regulations), of your individual end users; and (2) does not reveal that the Protected Information is derived from Webgility’s relationship with you hereunder. Webgility will not use or allow the Protected Information to be used in any manner not permitted under this Section 5.2(a). Webgility may use anonymous and aggregated Protected Information to publish research data from time to time, and may use, display, distribute or license such anonymous aggregate research data for purposes of helping Webgility improve its products and services, to enable a better and more accurate user experience, and to assist in troubleshooting and technical support.

Your Use of Protected Information. You may use anonymous and aggregated Protected Information collected or stored through the Services to conduct certain analytical research, performance tracking, benchmarking, and decision making. You may also publish research data comprised of anonymous aggregate data from time to time, and may use, display, distribute or license such aggregated research de-identified, anonymized, data to third parties for purposes of helping to improve your products and services and assist in troubleshooting and technical support.

You may not use the information from the Services specific to any of your individual end users without first: 1) disclosing to your customer the intention to use the collected information in this manner; 2) obtaining affirmative consent from your customer to such use of the collected information. The disclosure and the consent for this type of data use must be separate from your terms of service.

(c) De-Anonymization of Data. Both you and Webgility agree that use of anonymous, aggregated Protected Information shall not be used in any way as to permit, allow, or encourage the de-anonymization or re-identification of the Protected Information for any purpose.

4.3 Notification of Security Breach. You shall notify Webgility of any security breach of End User Data within your system, network or application as soon as reasonably practicable to apprise Webgility of such event.

5. PCI COMPLIANCE. If your Developer Application(s) exchange credit card data with Webgility products or services, you must only distribute Developer Applications that (i) comply with local laws, credit card association and processor regulations including, but not limited to, all requirements set forth in the Payment Card Industry (“PCI”) Data Security Standard (which can be found at https://www.pcisecuritystandards.org/ ) for protecting cardholder data, (ii) ensure secure data handling in compliance with all regulations, including industry standard secure access mechanisms such as SSL based HTTPS connections. Webgility reserves the right to deny access to any of its credit card processing services to any Developer Application without notice for any reason. In the event that access is denied to Webgility’s credit card services you will continue to treat cardholder data as confidential and continue to protect cardholder data in compliance with local laws, credit card association and processor regulations including, but not limited to, all requirements set forth in the Payment Card Industry Data Security Standard for protecting cardholder data.

6. TRADEMARKS AND NAMING

6.1 “Connect Logo” means the Webgility Connect Platform logo(s), or such additional or replacement logo(s) as Webgility may provide from time to time at its sole discretion.

6.2 “Webgility Marks” means the Webgility company name, Webgility trademarks, logos, product and services names, including but not limited to Webgility, the Webgility corporate logo, Connect, Connect Cloud, eCC Cloud, eCC, eCC Desktop, Shiplark and all other Webgility trademarks, logos, product and service names,

6.3 Terms of Use. Subject to your compliance with the terms of this Agreement, Webgility hereby grants to you a non-exclusive, non-transferable, royalty-free, revocable license in the Territory to use the Connect Platform Logo(s) solely on the Developer Application(s) and in packaging, marketing materials, advertising and web pages directly related to the sale and support of the Developer Application(s). Your use of the Connect Platform Logo must also comply with all applicable Webgility branding and trademark usage guidelines which may be updated by Webgility from time to time.

6.4 Restrictions. You will not use the Connect Platform Logo(s) the Webgility Marks, elements of the Webgility Marks (or phonetic equivalents of the Webgility Marks) (a) as part of any brand for the Developer Applications themselves; (b) as part of any brand(s), company names, service names or trade name(s) that appear in connection with the Developer Applications; (c) on direct business source identifiers, such as stationery, business cards, company signs, domain names, company websites, or non-tested products; (d) in any other manner, including but not limited to use on promotional merchandise (e.g., t-shirts), tradeshow booths, standalone technical support or consulting services, or other goods or services; (e) in connection with Developer Applications that are or could be deemed by Webgility, in its sole judgment, to violate Webgility's Connect Platform Development Guidelines.

6.5 Proper Attribution and Disclaimer: All materials, including packaging, marketing materials and web pages relating to the Developer Applications that display the Connect Platform Logo(s) shall include the required legend as follows: "Webgility Connect Platform is a registered trademark of Webgility Inc. and is displayed under license."

6.6 Acknowledgment. Webgility retains all right, title and interest in and to the Connect Platform Logo(s), and all use of the Connect Platform Logo(s) by you shall inure to the sole benefit of Webgility. You shall not in connection with the Developer Applications: (a) use or register in any country or state any trademarks, service marks, trade names, keywords, screen names or Internet domain names containing elements of, or similar to the Connect Platform Logo(s), or the "Webgility Connect Platform" marks, or other Webgility-owned marks; (b) challenge Webgility's ownership or use of the Connect Platform Logo(s), the "Webgility Connect Platform" marks, or other Webgility-owned marks; or (c) combine any of your own names or marks with the Connect Platform Logo(s), the "Webgility Platform,” or other Webgility-owned marks. If Webgility notifies you of any such confusion or risk of confusion, you shall take appropriate steps to immediately remedy or avoid such confusion or risk thereof, including immediate assignment of any such registrations or rights to Webgility at your expense.

7.THIRD PARTY SERVICES.
In connection with the promotion or your use of the Services or any Developer Materials, you may be made aware of or offered services, features, products, offers and promotions provided by third parties, and not by Webgility, such as internet based offerings (“Third Party Services”). Some of these links are provided as a convenience only. The inclusion of any link does not mean an affiliation, sponsorship, endorsement, approval, investigation, verification or monitoring by Webgility or its suppliers of any information contained in any third party website. In no event will Webgility or its suppliers be responsible for the information contained in such third party web site or for your use of or inability to use such web site. Access to any other web site is at your own risk, and you should be aware that linked web sites may contain terms and privacy policies that are different from those of Webgility and its suppliers. Neither Webgility nor its suppliers are responsible for such provisions, and expressly disclaim any liability for them. If you decide to use Third Party Services, you are responsible for reviewing and understanding any such terms and conditions governing such Third Party Services. You authorize Webgility to use and disclose your contact information, including name and address, for the purpose of making the Third Party Services you choose available to you. Your participation in such Third Party Services indicates your acceptance of the terms and conditions for such Third Party Service. You agree that the third party, and not Webgility, is solely responsible for the performance of the Third Party Services.

8. INDEMNIFICATION OBLIGATIONS.

8.1 By Developer. You agree to indemnify, defend and hold Webgility, its officers, directors, employees, its affiliates, subsidiaries, licensors, suppliers and service providers (collectively, “Representatives”) harmless from any and all claims, liabilities, damages, losses, costs and expenses, including but not limited to reasonable attorneys' fees and costs, arising out of any claims alleging or relating to (i) your applications, trademarks, logos or marks infringe any third party intellectual property rights, (ii) your development, marketing, support or distribution of your Developer Application; (iii) your use of the Services, including any data provided via the Services; (iv) your Content; (v) a security breach of your Developer Application, your system, or the unauthorized use, access or disclosure of confidential or personal information, or (vi) your breach of this Agreement (collectively referred to as "Claims"), provided that Webgility promptly notifies You of the Claim from any third party. Upon Webgility’s request pursuant to a regulatory, governmental or end user inquiry, you agree to fully cooperate with Webgility, including providing Webgility with access and information relating to your business and Developer Application, to assist with any investigation or inquiry related to your use of the Service or the development, marketing or distribution of the Developer Application.

If you permit your affiliates, subsidiaries, employees, and/or any third party to access or use the Service or your Content, you shall be solely responsible for (i) their acts and/or omissions in connection with their access to or use of the Service and (ii) ensuring that their access or use of the Service is in compliance with the Agreement, and any and all applicable local laws, rules and regulations. You agree to fully indemnify, defend and hold Webgility and its Representatives harmless for any and all claims, liabilities, damages, losses, costs and expenses, including but not limited to reasonable attorneys' fees and costs incurred by Webgility or the Representatives arising from acts of your affiliates, subsidiaries, employees or any third-parties.

8.2 By Webgility. Webgility will indemnify, hold harmless, and defend you from and against any action brought against you by a third party to the extent that it is based upon a claim that the API, the Webgility Connect Platform website (excluding any content or material you provide to Webgility) or the Services, as provided by Webgility to you under this Agreement and used within the scope of this Agreement, infringes any U.S. patent, copyright, trademark or trade secret, or any intellectual property rights recognized under U.S. law, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded either by final judgment or settlement against you, provided that you: (i) promptly notify Webgility in writing of the claim; (ii) grant Webgility sole control of the defense and settlement of the claim; and (iii) provide Webgility, at Webgility’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Webgility will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (a) modifications to the API or the Service made by a party other than Webgility or its agents, if a claim would not have occurred but for such modifications; (b) the combination, operation or use of the API or the Service with equipment, devices, software, service or data not supplied by Webgility, if a claim would not have occurred but for such combination, operation or use; or (c) your failure to use an updated or modified version of the Service if provided by Webgility to avoid a claim. The provisions of this section set forth Webgility’s sole and exclusive obligations, and your sole and exclusive remedies, with respect to infringement or misappropriation of intellectual property rights of any kind in connection with the Service.

9. STORING USER DATA. Developer Application’s storage of user credentials (e.g., username, password, account numbers, etc.), must comply with Webgility’s Password Policy (click here to view). Only Developers who receive prior written approval from Webgility may store any user credentials that may be used to access end-user data from another source (e.g., the end-user’s financial institution).

10. COMPETITIVE APPLICATIONS. Subject to your and Webgility’s respective rights and obligations under this Agreement, Webgility acknowledges that you may develop and make available products and services that are similar to or otherwise compete with Webgility products and services, and you acknowledge that Webgility may develop and make available products and services that are similar to or otherwise may compete with your products and services.

12. DEVELOPER APPLICATION MINIMUM END USER TERMS

The following terms apply to all Developer Applications. Addition terms and conditions apply if you are using Customer Account Data API & Services. Please see Exhibit C, Schedule A.

You (“Developer”) must include minimum terms with any distribution of a Developer Application that you make available to any end user, customer, partner, or other third party (“Licensee”), which are no less protective of Webgility and its affiliates and suppliers than those set forth herein and in all material form the terms set forth below:

Restrictions. Licensee and its employees shall not and shall not permit any third party to, directly or indirectly: (a) reverse engineer, decrypt, decompile, decode, disassemble, or otherwise attempt to obtain the source code to the Developer Application; (b) rent or time-share the Developer Application; (c) remove or destroy any copyright notices, proprietary markings or confidential legends placed upon or contained within the Developer Application or any copies thereof; (d) engage in any activity with the Developer Application that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party; and (e) use the Developer Application or data provided via the Developer Application in any way in furtherance of criminal, fraudulent, or other unlawful activity. Licensee must comply with applicable laws and regulations in using, accessing or distributing the Developer Application, including any data provided via the Developer Application.

Data Use. Anonymous, aggregate information, comprising financial account balances, other financial account data, or other available data that is provided to you, may be used by our third party vendors to conduct certain analytical research, performance tracking and benchmarking. Our third party vendors may publish summary or aggregate results relating to metrics comprised of research data, from time to time, and distribute or license such anonymous, aggregated research data for any purpose, including but not limited to, helping to improve products and services and assisting in troubleshooting and technical support. Your personally identifiable information will not be shared with or sold to third parties.

Third Party Services. You understand that the Developer Application may require access to certain third party services (“Third Party Services”). In order to use the Developer Application that uses or collects data from the Third Party Services, you hereby authorize the third party service provider to share your data with Developer. Such data may include your financial or personal information. In addition, you agree that Developer may provide your data to the third party service provider to use in connection with the Third Party Services. You represent and warrant that you have the rights and authority to provide such authorization to the third party service provider and Developer. Your use and/or access to Third Party Services shall be limited to those uses and access rights permitted by the third party service provider. If you access and use the Third Party Services, you are responsible for reviewing and understanding any such terms and conditions governing such Third Party Services. You understand that Developer has no control over the Third Party Services and that your ability to access and use the Third Party Services may be suspended or terminated at any time, for any reason, at the third party service provider’s discretion.

Disclaimer. LICENSEE ACKNOWLEDGES AND AGREES THAT THE DEVELOPER APPLICATION, ANY THIRD PARTY SERVICES AND ANY DATA PROVIDED VIA THE THIRD PARTY SERVICES OR DEVELOPER APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE.” VENDOR, ITS LICENSORS AND THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY, EXPRESS, IMPLIED, OR STATUTORY AND DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE DEVELOPER APPLICATION, ANY THIRD PARTY SERVICES OR ANY DATA PROVIDED VIA THE THIRD PARTY SERVICES OR DEVELOPER APPLICATION, IN WHOLE OR IN PART, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT. LICENSEE UNDERSTANDS AND AGREES THAT ANY USE OF THE DEVELOPER APPLICATION, THIRD PARTY SERVICES OR DATA PROVIDED VIA THE THIRD PARTY SERVICES OR DEVELOPER APPLICATION WILL BE AT LICENSEE’S SOLE RISK, AND THAT, IF THERE IS ANY LIABILITY IN CONNECTION WITH THE DEVELOPER APPLICATION, INCLUDING LIABILITY ARISING FROM A SECURITY BREACH OR DEVELOPER’S LACK OF COMPLIANCE WITH APPLICABLE LAWS OR REGULATIONS OR DATA PRIVACY PROTECTION, SUCH LIABILITY IS SOLELY WITH THE DEVELOPER AND NOT ITS LICENSORS OR THIRD PARTY SERVICE PROVIDERS.

C. EXHIBITS: ADDITIONAL TERMS AND CONDITIONS FOR OPTIONAL WEBGILITY CONNECT PLATFORM SERVICES

Your use of the Services provided by Webgility are subject to the General Terms of Service above including the Additional Terms and Conditions. The following Terms and Conditions also apply where you have selected these optional services and shall prevail over any conflict or inconsistency with the General Terms of Service above.

EXHIBIT A: Connect Developer Applications
EXHIBIT B: Webgility Data Stewardship Principles
EXHIBIT C: Webgility Customer Account Data API & Services (Aggregation & Categorization)