Terms and Conditions for Evalutory Use of API

Customer agrees not to adopt, use or attempt to register any trademarks or trade names that are confusingly similar to DFS’s trademarks, trade names, service marks and logos (“DFS Marks”), as determined by DFS in the exercise of its reasonable business judgment, or in such a way as to create combination marks.  Customer acknowledges and agrees that some of the DFS Data that is part of the DFS API is licensed from third parties, and acknowledges and agrees that Customer’s right to use third party data may be subject to the rights of those third parties, and any limitations or conditions they elect to impose on the use of that data.  Under no circumstances may Customer use any DFS Marks for any purpose other than in express accordance with this Agreement.  Customer specifically acknowledges that entry into any agreement with a third party for the purchase of traffic involving keywords that are identical to or similar to any of DFS's Marks will constitute a breach of this Agreement and will, whether occurring during or following the Term, also constitute trademark infringement.

THE DFS API, THE API KEY, THE DFS DATA, THE DEVELOPER PORTAL, AS WELL AS ANY INFORMATION, DOCUMENTATION, MARKETING TOOLS OR OTHER INFORMATION PROVIDED BY DFS, ITS AFFILIATES AND/OR THIRD PARTY PROVIDERS UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, CONDITIONS, GUARANTIES OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING.  WITHOUT LIMITING THE FOREGOING, DFS AND ITS AFFIIATES AND THIRD PARTY PROVIDERS MAKE NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY OF THE DFS API OR THE DFS DATA, THE CONTENT ACCESSED THROUGH THE DFS API AND DEVELOPER PORTAL, THE RELIABILITY, AVAILABILITY OR ABILITY TO MEET CUSTOMER NEEDS, OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DFS API, API KEY, DEVELOPR PORTAL OR DFS DATA PROVIDED HEREUNDER, AND DFS, ITS AFFILATES AND THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ANY CONDITION OF QUALITY AND ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION MADE BY DFS, EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.  CUSTOMER ACKNOWLEDGES THAT DFS, ITS EMPLOYEES, AGENTS, AFFILIATES, THIRD PARTY PROVIDERS, CONTRACTORS AND SUB-CONTRACTORS WILL NOT BE HELD LIABLE FOR ANY DAMAGES SUFFERED OR INCURRED BY CUSOTMER, ANY CUSTOMER OR END USER OF CUSOTMER OR ANY OTHER PERSON OR ENTITY ARISING OUT OF ANY FAULT, INTERRUPTION OR DELAY IN ANY SERVICE HEREUNDER OR OUT OF ANY INACCURACY, ERROR OR OMISSION IN ANY CONTENT OR SERVICE SUPPLIED TO CUSTOMER, HOWEVER SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE.

Customer represents and warrants that (i) none of the Customer data furnished by Customer or any item altered by DFS at Customer’s direction infringes any copyright, trademark, trade secret or other intellectual property right, is libelous, or otherwise violates the rights of or will cause damage or injury to other persons (ii) all data provided to DFS will be comply with any applicable law, rule or regulation (iii) access to the Developer Portal and use of the DFS API, and DFS Data shall be solely in accordance with the Authorized Applications and displayed only to Customer’s authorized end users and (iv) Customer shall take all commercially reasonable steps to protect the DFS Data from unauthorized access, copying, distribution, publishing, transmitting, displaying or use.

Customer agrees to defend, indemnify and hold DFS, its parent company and any affiliate entities, and its and their directors, officers, employees, agents and assigns, harmless from and against any and all losses, costs, claims, liabilities, damages, suits, actions or expenses (including, without limitation, reasonable attorneys' fees) arising from or in connection with (i) any breach of these representations, warranties and covenants by Customer or its end users(ii) Customer’s or Customer’s end users performance or failure to perform any of its obligations under this Agreement or (iii) Customer’s or Customer’s end users misuse of the DFS API or DFS Data.

Customer agrees to pay DFS the fees and charges as mutually agreed to between the parties in writing and invoiced.  Customer shall pay any amounts invoiced by DFS within 30 days of the invoice date or as otherwise agreed to by the parties in writing. All payments will be made in U.S. dollars by check or wire transfer to DFS's designated bank account.  Late payments shall accrue interest from the due date at a rate of one and one half percent per month or, if lower, the highest rate allowed by law.  If Customer fails to pay any undisputed amounts when due, DFS may, without liability, immediately restrict usage of the DFS API, API Key, DFS Data, and/or Developer Portal until full payment for all outstanding amounts is received.  Customer shall be responsible for any present or future sales, use, excise, service, goods, value added, property and other taxes and duties arising in connection with this Agreement (other than taxes on DFS’s net income).  DFS reserves the right to increase the fees on no less than an annual basis

DFS’s maximum liability for any and all claims arising directly or indirectly from the performance of its obligations under this Agreement shall not in the aggregate exceed the purchase price of the DFS API. No action, regardless of form or legal theory asserted, arising out of, related to or in connection with this Agreement may be brought by Customer against DFS more than one year after the cause of action has arisen. IN NO EVENT SHALL DFS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOSS OF PROFITS, LOSS OF USE OR DATA OR INTERRUPTION OF BUSINESS, COSTS OF SUBSTITUTE GOODS OR SERVICES, WHETHER SUCH DAMAGES OR LOSSES ARE ALLEGED IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR INDEMNITY, EVEN IF DFS OR ITS AGENTS WERE ADVISED OR AWARE OF THE LIKELIHOOD OF SUCH DAMAGES OR LOSSES OCCURRING.  IF CUSTOMER DOES NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR IF CUSTOMER HAS ANY DISPUTE OR CLAIM AGAINST DFS OR ITS SUPPLIERS WITH RESPECT TO THIS AGREEMENT OR THE SERVICES HEREUNDER, THEN CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE DFS API, DFS DATA, API KEY AND DEVELOPER PORTAL.

Each party agrees: (i) to hold information of the other party designated as confidential (“Confidential Information”) in confidence by using the same degree of care to safeguard such Confidential Information as it uses to protect its own information of like character, but in no event less than a reasonable degree of care; (ii) to limit disclosure of Confidential Information of the other party to its employees having a need to know such information for the purposes of this Agreement; (iii) not to disclose any Confidential Information to any third party; and (iv) to use Confidential Information solely and exclusively in accordance with the terms of this Agreement. Confidential Information shall remain the property of the disclosing party, and the receiving party will not be deemed by virtue of its access to Confidential Information of the disclosing party to have acquired any right or interest in or to any Confidential Information. This section shall not affect either party’s right to use or disclose information that: (a) is or may hereafter be in the public domain; (b) the receiving party can show was known to it without any confidentiality obligation prior to the disclosure by the disclosing party; (c) is disclosed to the receiving party by a third party, without violation of any confidentiality obligation, subsequent to disclosure by the disclosing party; (d) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (e) is required to be disclosed pursuant to governmental or judicial process, provided that notice of such process is promptly provided to the disclosing party in order that it may have every opportunity to intercede in such process to contest such disclosure. The confidentiality provisions shall survive the termination and/or expiration of this Agreement for a period of two years from the date of disclosure.

DFS shall, at its sole cost and expense, release, defend, indemnify and hold harmless Customer, its directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a claim that the DFS API infringes a U.S. patent, copyright, trademark, trade secret or other proprietary right of a third party, provided that this indemnity shall not apply to the extent that the infringement was caused by any act or omission of the Customer, any data submitted by Customer, or for any third party intellectual property or data. Customer shall, at its sole cost and expense, release, defend, indemnify and hold harmless DFS, its directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a claim that any data submitted by Customer infringes a copyright, trademark, trade secret or other proprietary right of a third party or violates applicable law. The party seeking indemnification shall notify the other party promptly of any such action, suit or proceeding and shall cooperate fully with the indemnifying party in the defense of any such claim. The indemnifying party shall have sole control of the defense of any such action and all negotiations for its settlement or compromise, provided that such settlement or compromise shall not interfere with DFS's provision of services hereunder. The indemnified party may participate, at its expense, in the defense of any such action, but shall make no admission of liability or settle any claim without the prior written agreement of the indemnifying party. 

Either party may terminate this Agreement for convenience upon sixty (60) days advance written notice to the other party.  Either party may terminate this Agreement upon thirty (30) days advance written notice to the other party in the event the other party is in material breach of its obligations herein, which is not remedied within such thirty day period. Upon the expiration or termination of this Agreement, Customer’s access to and use of the DFS API, API Key, DFS Data, and Developer Portal shall immediately expire.  DFS shall issue a final invoice for any open items, which shall be paid by Customer in accordance with the payment terms of this Agreement. 

DFS, ITS AFFILIATES AND THIRD PARTY PROVIDERS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM ANY PORTION OF THE SERVICES HEREUNDER, AS SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES AND SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES AND ON THE PUBLIC INTERNET INFRASTRUCTURE, AS WELL AS OTHER EVENTS BEYOND THE CONTROL OF DFS. AT TIMES, ACTION OR INACTION OF PARTIES OTHER THAN DFS OR EVENTS BEYOND DFS’S REASONABLE CONTROL (“FORCE MAJEURE EVENTS”) CAN IMPAIR OR DISRUPT DFS’S ABILITY TO PROVIDE THE SERVICES OR CUSTOMER’S OR ITS END USERS’ ABILITY TO ACCESS THE DFS API, DEVELOPER PORTAL OR DFS DATA. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DFS DISCLAIMS, AND CUSTOMER SHALL NOT HOLD DFS RESPONSIBLE FOR, ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH ACTIONS OR FORCE MAJEURE.

DFS may: (i) include Customer in current customer lists on its website and other promotional materials, which are shown to prospective users; (ii) display Customer’s logo in a rotating display of other companies’ logos on its website and other promotional materials; and (iii) use, reproduce and display testimonials, white papers and other materials approved by Customer on its website and in other promotional materials. 

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party shall assign or otherwise transfer this Agreement without the prior express written consent of the other party, such consent not to be unreasonably withheld. DFS hereby reserves the right, in its sole discretion, to subcontract any portion or all of this Agreement. This Agreement supersedes and merges all prior proposals, understandings, and agreements, oral and written, between the parties relating to the subject matter of this Agreement and may not be modified or altered except by written instrument duly executed by both parties signing this Agreement. Customer agrees that this Agreement exclusively governs and controls the rights of the parties so that any purchase order or other writing Customer may submit to DFS shall be for Customer’s convenience only. This Agreement shall be governed by the internal laws of the State of New York, without regard to its conflicts of law provision(s). Except as otherwise provided herein, DFS reserves the right at any time to modify the features, functionality or performance of the Services and to modify this Agreement at any time, without notice to the Customer. The most current version of this Agreement will supersede all previous versions.  Customer and DFS are independent contractors, and this Agreement shall not be deemed to create any employment, partnership, or joint venture relationship between the parties hereto. Neither party shall have the authority or represent itself as having the authority to bind the other party to any agreement or commitment with a third party or otherwise.