1. License; Sublicense. Subject to the terms and conditions of this Agreement, Measurabl grants to Customer a non-transferable, non-assignable, non-exclusive license (without the right to sublicense – except as expressly set forth herein) to access and use the API solely for the purpose of connecting Customer’s products to the applicable Measurabl products, and for no other purpose whatsoever. Customer may provide access to the Measurabl API via a sublicense to third party consultants/independent contractors, provided that: (i) Customer has a written agreement with each such third party consultant/independent contractor that informs such consultant/independent contractor of the terms and conditions of this Agreement and binds such consultant/independent contractor to the terms hereof; and (ii) Customer ensures that such consultant/independent contractor abides by the terms hereof (in particular, the restrictions set forth in Section 2 below and no right to further sublicense), and does not use the API for any purpose other than the purpose stated herein.  Customer shall be fully liable to Measurabl for any breach of this Agreement committed by any such consultant/independent contractor, and any such breach shall be deemed a breach of this Agreement by Customer.

2. Restrictions and Usage. Except as expressly permitted in this Agreement, Customer shall not, nor shall Customer authorize, permit, or otherwise assist any third party to: (a) use Measurabl’s name to endorse or promote any content, service, or product, including the Customer products, without Measurabl’s prior written consent; (b) use the API for any illegal, unauthorized or otherwise improper purposes; (c) license, sell, rent, lease, transfer, assign, distribute, host, outsource, disclose, make available to any third party, or otherwise commercially exploit or derive income from the use or provision of the API, without Measurabl’s prior written consent; (d) modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the API; (e) access the API, or otherwise make any use of the API, in order to build a similar or competitive product or service; or (f) use the API in a manner that, as determined by Measurabl in Measurabl’s sole discretion, fails to comply or is inconsistent with any part of the API documentation.  Except as expressly stated herein, no part of the API may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.  Any future release, update, or other addition to functionality of the API (if any), which may be provided by Measurabl from time to time, shall be subject to the terms of this Agreement unless Measurabl expressly states otherwise.  Customer shall preserve all copyright and other proprietary rights notices on the API and all copies thereof.  All data provided via the API shall be subject to Measurabl’s then-current privacy policy.  Customer will respect and comply with the technical and policy-implemented limitations of the API and the restrictions of this Agreement in designing and implementing applicable Customer products. Without limiting the foregoing, Customer shall not violate any explicit rate limitations on calling or otherwise utilizing the API.

3. Trademark License. Subject to the terms and conditions of this Agreement, Measurabl grants to Customer a non-transferable, non-assignable, non-exclusive, license (without the right to sublicense) to use and reproduce the trademarks and trade names of Measurabl (“Measurabl Marks”) solely in connection with promoting Customer’s use of the API.  Customer agrees to state in appropriate places on all materials using the Measurabl Marks that the Measurabl Marks are trademarks of Measurabl and to include the symbol ™ or ® as appropriate.  Customer acknowledges Measurabl’s exclusive ownership of the Measurabl Marks.  Customer agrees not to take any action inconsistent with such ownership and to cooperate, at Measurabl’s request and expense, in any action which Measurabl deems necessary or desirable to establish or preserve Measurabl’s exclusive rights in and to the Measurabl Marks.  Customer will not adopt, use, or attempt to register any trademarks or trade names that are confusingly similar to the Measurabl Marks or in such a way as to create combination marks with the Measurabl Marks.  Customer will provide Measurabl with samples of all products and materials that contain the Measurabl Marks prior to their public use, distribution, or display for Measurabl’s quality assurance purposes and will obtain Measurabl’s written approval before such use, distribution, or display.  At Measurabl’s request, Customer will modify or discontinue any use of the Measurabl Marks if Measurabl determines that such use does not comply with Measurabl’s then-current trademark usage policies and guidelines.

4. Marketing. Measurabl may publicly refer to Customer, orally or in writing, as an API licensee of Measurabl and Measurabl may publish customer’s name and/or logo on Measurabl’s website or promotional materials without Customer’s prior written consent.

5. Ownership; Changes to the API. The API and all worldwide copyrights, trade secrets, and other intellectual property rights therein, are the exclusive property of Measurabl and its suppliers.  All rights in and to the API not expressly granted to Customer in this Agreement are reserved by Measurabl and its suppliers.  If Customer desires any changes to be made to the API, then Customer shall provide a written request to Measurabl, and Measurabl, in its sole discretion, will decide whether or not to make such changes.  If Measurabl decides to do so, then Measurabl will update the API accordingly, and permit Customer to access the updated version.  As between Customer and Measurabl, Measurabl shall solely and exclusively own all rights (including, without limitation, all intellectual property rights), title, and interest in and to any and all such changes to the API, and to the extent that Customer may have, or afterwards acquires any right, title, or interest in any such change, Customer hereby irrevocably assigns, transfers, and conveys to Measurabl any and all such right, title, and interest.

6. Confidential Information. Measurabl may from time to time during the term of this Agreement disclose to Customer certain confidential or proprietary information regarding Measurabl’s business and technology, including, without limitation the API (“Confidential Information”).  Customer will not use any Confidential Information for any purpose other than for the purposes expressly set forth in this Agreement, and will disclose the Confidential Information only to the employees or contractors of Customer who have a need to know such Confidential Information for the purposes of this Agreement and who are bound by confidentiality obligations or are under a duty of confidentiality no less restrictive than Customer’s duty hereunder.  Customer will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Customer protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.  Customer will return to Measurabl or destroy all Confidential Information in Customer’s possession or control promptly upon the written request of Measurabl or the expiration or termination of this Agreement, whichever comes first.  At Measurabl’s request, Customer will certify in writing signed by an officer of Customer that it has fully complied with its obligations under this Section 6.

7. Term and Termination. Measurabl may publicly refer to Customer, orally or in writing, as an API licensee of Measurabl and Measurabl may publish customer’s name and/or logo on Measurabl’s website or promotional materials without Customer’s prior written consent.

(a) Measurabl may publicly refer to Customer, orally or in writing, as an API licensee of Measurabl and Measurabl may publish customer’s name and/or logo on Measurabl’s website or promotional materials without Customer’s prior written consent.

(b) This Agreement may be terminated as follows: (1) by Measurabl for cause, immediately upon the occurrence of any of the following events and effective upon delivery of notice by Measurabl to Customer: (i) if Customer ceases to do business, or otherwise terminates Customer’s business operations; (ii) if Customer seeks protection under any bankruptcy, receivership, trustee, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against Customer; (2) each party will have the right to terminate this Agreement for cause if the other party breaches any of its duties or obligations under this Agreement and such breach is not cured within thirty (30) days of receipt of notice of such breach from the non-breaching party; (3) this Agreement may also be terminated by either party for convenience, for any or no reason, upon issuance of at least thirty (30) days written notice by the terminating party to the other party.

(c) Upon any termination of this Agreement, the license granted hereunder shall immediately terminate and Customer shall immediately destroy or delete any copies of the API in its possession.  Measurabl will incur no liability whatsoever for any damages, losses, or expenses of any kind suffered or incurred by Customer arising from or incident to termination of this Agreement by Measurabl.  Sections 2, 5, 6, 7(c), 8, 9, 10, 11, 12, and 13 will survive the expiration or termination of this Agreement for any reason.

8. Indemnity. Customer agrees to defend, indemnify and hold harmless Measurabl from and against any claims, suits, demands, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by a third party against Measurabl resulting from or relating to: (a) Customer’s use of the API or (b) any breach by Customer of its obligations under this Agreement.  Measurabl will provide Customer notice of any such claims.

9. Disclaimer of Warranties. THE API IS PROVIDED “AS IS,” AND “AS AVAILABLE” AND MEASURABL MAKES NO (AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THIS AGREEMENT, THE USE, MISUSE, OR INABILITY TO USE THE API (IN WHOLE OR IN PART).  MEASURABL DOES NOT WARRANT THAT ALL ERRORS CAN OR WILL BE CORRECTED, OR THAT OPERATION OF THE API SHALL BE UNINTERRUPTED OR ERROR-FREE.  THE API MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  MEASURABL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

10. Limitation of Remedies and Damages. Customer agrees to defend, indemnify and hold harmless Measurabl from and against any claims, suits, demands, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) brought by a third party against Measurabl resulting from or relating to: (a) Customer’s use of the API or (b) any breach by Customer of its obligations under this Agreement.  Measurabl will provide Customer notice of any such claims.

(a) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MEASURABL, OR ITS SUPPLIERS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF DATA, USE OR GOODWILL, PERSONAL OR PROPERTY DAMAGE RESULTING FROM OR IN CONNECTION WITH MEASURABL’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE API HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF MEASURABL HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.  IN NO EVENT SHALL MEASURABL BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

(b) TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE CUMULATIVE LIABILITY OF MEASURABL ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED U.S. $50.  THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE MEASURABL’S LIABILITY.  IN NO EVENT SHALL MEASURABL’S SUPPLIERS HAVE ANY LIABILITY WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

(c) THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY.  THE PARTIES ACKNOWLEDGE THAT THE AGREEMENT HAS BEEN ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.

11. Export. The API and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries.  Customer agrees to strictly comply with all such laws and regulations and acknowledges that it has the responsibility to obtain authorization to export, re-export, or import the API and related technology, as may be required.

12. Miscellanious. Neither the rights nor the obligations arising under this Agreement are assignable by Customer without Measurabl’s prior written consent, which may be granted or withheld at Measurabl’s sole and absolute discretion. Any attempted assignment or transfer in violation of the foregoing shall be void and without effect.  Measurabl may freely assign this Agreement to any third party.  This Agreement shall be governed by and construed in accordance with the laws of the State of California and the United States without regard to the conflict of laws provisions therein that would require application of the laws of another jurisdiction.  Any action under or relating to this Agreement shall be brought solely in the state and federal courts located in the State of California, with sole venue in the courts located in San Diego County, California and each party hereby submits to the personal jurisdiction of such courts, except that Measurabl may seek relief in any court of competent jurisdiction to protect or enforce its intellectual property and proprietary rights.  The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  In the event that any provision of this Agreement is found to be contrary to law, then such provision shall be construed as nearly as possible to reflect the intention of the parties, with the other provisions remaining in full force and effect.  Any notice to Customer may be provided by email.  Customer’s relationship to Measurabl is that of an independent contractor, and neither party is an agent or partner of the other.  Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Measurabl. This Agreement constitutes the complete and entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements regarding such subject matter previously existing between the parties are expressly canceled.  For clarity, this Agreement does not modify or in any manner affect any separate written agreement between Measurabl and Customer – each and every such separate written agreement remains in full force and effect in accordance with its terms. Any modifications of this Agreement must be in writing and agreed to by both parties.

Notices, Questions or Additional Information. If Customer has questions regarding this Agreement, or wishes to obtain additional information, please contact Measurabl at: legal@measurabl.com.