Developer Agreement

BlueCross BlueShield Association

PlanConnexion® Collaborative Services Marketplace

Developer Portal

API Developer Agreement

 

Please read this API Developer Agreement (the “Agreement”) carefully.  Subject to the terms and conditions of this Agreement, Plan Connexion Collaborative Services Marketplace. (“PXCSM”) may provide you and any entity on whose behalf you accept this Agreement (you and any such entity, the “Licensee”) with access to and use of API Materials (as defined below) related to PXCSM’s online API  Platform (as defined below).  By registering for or downloading, accessing or using the API Materials, Licensee agrees to be bound by and comply with this Agreement.  If Licensee does not so agree, Licensee shall not download, access or use the API Materials.

PXCSM may modify this Agreement at any time, in its sole discretion, by notifying Licensee of such changes by any means, including by posting such modified Agreement on the API Platform.  If such modification is unacceptable to Licensee, Licensee’s sole recourse is to terminate this Agreement and cease downloading, accessing or using the API Materials.  Licensee’s continued access to or use of any API Materials following any change to this Agreement will constitute Licensee’s binding acceptance to such modified Agreement.  You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of this Agreement.  Notwithstanding the foregoing, any modifications to this Agreement shall not apply to any dispute between PXCSM and you arising prior to the date on which we post the revised Agreement that contains such modifications.

Licensee agrees to comply with all guidelines, rules, policies, terms and conditions that may be posted by PXCSM on the API Platform or otherwise communicated by PXCSM to Licensee from time to time, and with all applicable third-party terms of agreement.  If Licensee has entered into a written agreement with PXCSM or any affiliate of PXCSM that refers to this Agreement (such written agreement, an “Additional Agreement”) and such Additional Agreement contains terms and conditions that conflict with, or are in addition to, the terms and conditions set forth herein (such conflicting or additional terms, the “Other Terms”), then such Other Terms shall govern (i) in lieu of any conflicting terms and conditions set forth herein, and (ii) otherwise in addition to the terms and conditions set forth herein.

1.              Definitions.  For purposes of this Agreement, the following terms have the following meanings:

(a)             “API” means any application programming interface(s) of PXCSM or any third party (that may consist of code, instructions and/or other data and information), as may be made available by PXCSM from time to time in its discretion, and that are intended to permit an Application to interface with the API Platform in accordance with the terms and conditions hereof.

(b)            API Key” means the unique string identifying each Application and/or Licensee as a user of an API, assigned by PXCSM to Licensee in PXCSM’s discretion, to enable Licensee to access and/or use such API.  The API Key may include separate “keys” for development purposes (a “Development Key”) and production purposes (a “Production Key”), and/or other unique identifier(s) assigned by PXCSM to each Application and/or Licensee.  API Keys may be subject to activation, suspension and/or deactivation by PXCSM to ensure usage consistent with this Agreement and all applicable requirements, and for any other reason in PXCSM’s discretion.

(c)            API Marks” means the trade names, trademarks, service marks and associated logos set forth by PXCSM in a schedule attached to this Agreement, if applicable, and as amended from time to time.

(d)            API Materials” means any and all of the API, the API Key, and the Specifications (including any copies, portions, extracts and derivatives thereof) and any related materials (excluding the API Marks) made available by or on behalf of PXCSM to Licensee pursuant to this Agreement or otherwise in connection with the API.

(e)             “Application” means a Licensee software application that incorporates, accesses or uses any API Materials.

(f)              API Data” means any data, content, materials and other information (including accompanying metadata) that at any time is transmitted to or from, stored on, or accessible through the API Platform, or is otherwise made available by PXCSM to Licensee in connection with the API Platform.

(g)             “API Platform” means the PXCSM system for hosting consumer health and wellness information and other related information (which may consist of or comprise software, data, functions, features and other technology) currently accessible through http://www.API.com/, and as may be (i) identified in the Specifications and/or any Additional Agreement, and/or (ii) designated by PXCSM from time to time in its discretion.

(h)            Profile” means a defined category specified by PXCSM with which User Data may be associated.

(i)              Specifications” means any specifications and documentation related to the API that PXCSM may make available from time to time in its discretion, and includes any software code (other than the API Key) that PXCSM may make available specifically for the purpose of enabling an Application to access or use the API or to permit an Application to interface with the API Platform (for example, code to be embedded in an Application to facilitate communication through the API or with the API Platform).

(j)             User” means an end user of an Application.

(k)            User Data” means any API Data collected from Users (whether by PXCSM, Licensee or third parties), including any such data that identifies or can be used to identify an individual.

2.              Limited Right to Use the API Materials.

(a)   Use of API Materials and API Keys.  Subject to Licensee’s acceptance of and compliance with this Agreement and the Specifications and, if applicable, the Other Terms, PXCSM grants to Licensee a limited, revocable, nonexclusive, non-sublicensable, non-transferable, non-assignable right, solely while this Agreement is in effect (as provided herein or as may be provided in any Additional Agreement), (a) to access and use the API Materials owned by PXCSM (the “PXCSM API Materials”) solely to develop Applications for such purposes as may be (i) set forth in the Specifications and/or any Additional Agreement, and/or (ii) communicated by PXCSM in writing from time to time in its discretion (such development activities, “Development”), and (b) to use the API Key that may be generated, activated and provided to Licensee by PXCSM, in PXCSM’s discretion, solely to access an applicable API owned by PXCSM (an “PXCSM API”) as made available to Licensee by PXCSM, or to permit Applications to interface with the API Platform, solely as described in the Specifications and/or any Additional Agreement.  Notwithstanding anything to the contrary herein, Licensee’s rights in and to any API Materials owned by third parties are limited to the rights granted to Licensee by such third parties.

(b)   Application Integration Environment.  Notwithstanding anything to the contrary herein, Licensee may only conduct any Development authorized by this Agreement against PXCSM’s designated application integration environment, as made available by PXCSM to Licensee for such purposes (such environment, the “AIE”).  Licensee may not conduct Development against any production version of the API Platform, or otherwise in PXCSM’s production environment.  If PXCSM provides Licensee with a Development Key, Licensee may use only such Development Key (and not any Production Key) in connection with any Development.  Licensee may not use, request, receive, provide or transmit any API Data or any other “live” data (including User Data and any real credit card or other payment information or any other personal or personally identifiable information) in connection with any Development or the AIE.

(c)   Application Submission.  Notwithstanding anything to the contrary herein, Licensee shall submit all Applications to PXCSM prior to any use of such Application (or any related API Key or other API Materials) with the API Platform or otherwise in PXCSM’s production environment.  By submitting an Application to PXCSM, Licensee represents and warrants that such Application complies with this Agreement and the Specifications and, if applicable, the Other Terms.  Licensee shall not hide, misrepresent or obscure any features, content, services or functionality in such Application.  PXCSM shall have the right (but not the obligation) to review and test such Application, and reserves the right to delay the activation of any API Key for such Application until the completion of any such review and testing.  Licensee shall provide any materials, data and other information as may be requested by PXCSM to confirm that such Application complies with this Agreement and the Specifications and, if applicable, the Other Terms.  PXCSM may reject any Application for any reason and at any time (including at any time after the activation of an API Key for such Application), in PXCSM’s sole discretion.  Upon any change to an Application or any API Materials that affect an Application, Licensee shall resubmit such Application to PXCSM pursuant to this Section 2(c).

3.              Restrictions.

(a)            General.  Licensee may use only those API Materials that are provided by PXCSM to Licensee.  Licensee may not use any key or means of access to the API other than the API Key provided by PXCSM to Licensee.  Licensee may not permit or enable any third party to use or access any API Materials.  Except as otherwise expressly permitted in this Agreement, Licensee will not, and Licensee will not permit or enable an Application or any third party to:  (i) use any API Materials for any purpose or in any manner other than expressly permitted in Section 2 above; (ii) rent, sell, lease, lend, convey, redistribute or otherwise provide any third party with access to any API Materials; (iii) modify, decompile, reverse engineer, alter, tamper with or create derivative works of any API Materials; (iv) falsify or alter the API Key or otherwise obscure or alter the sources of queries coming from an Application; or (v) access legacy or internal application programming interfaces or data feeds that are used by PXCSM but that are not available or intended by PXCSM to be available through the API.  Licensee will cause all API calls made by an Application to include Licensee’s API Key.

(b)            Conformance and Noninterference.  Licensee will cause each Application and Licensee’s use of the API to conform with and not interfere with, circumvent, or render ineffective:  (i) the Specifications and any other policies, terms and conditions that govern access to and/or use of the API (including any terms and conditions of any applicable Additional Agreement); and (ii) any restrictions implemented in connection with the API, including any geographically-based restrictions (e.g., geo-blocking or reverse-IP lookup).  Licensee will not, and Licensee will not permit or enable an Application or any third party to, interfere with the proper workings of any API Materials or the API Platform, or create or distribute any service or application that adversely affects the functionality or performance of any API Materials, the API Platform, or any websites, products or services of PXCSM or any of its affiliates, licensors, suppliers (including suppliers of API Data and API Materials), business partners or customers.  PXCSM may, in its sole discretion, set and change quotas and other limits on API usage, which may include the number of calls Licensee may make to the API Platform or otherwise using the API during a particular period, the minimum required time between any such calls, and/or the maximum file size that may be transmitted to or from the API Platform or otherwise using the API.  Licensee will not, and Licensee will not permit or enable an Application or any third party to, exceed or circumvent any such quotas or limits, including by aggregating accounts or obtaining multiple API keys.  Without limiting the foregoing, Licensee will not use the API in a manner that exceeds reasonable request volume or constitutes excessive or abusive use.

(c)            Responsibility and Compliance.  Licensee is responsible for all activities that occur using the API Key or any Application, regardless of whether those activities are undertaken by Licensee, a User, or any other person or entity.  Licensee will not, and Licensee will not permit or enable an Application or any third party to, access or use any API Materials or access, transmit, receive or use any API Data in a manner or for a purpose:  (i) that violates any applicable law, rule or regulation (including export laws) or privacy policy; (ii) that violates any third party’s intellectual property or other rights; (iii) that a User would reasonably consider to be deceptive, unethical, false or misleading; or (iv) that is inconsistent with this Agreement, the Specifications or any Additional Agreement.

(d)            Security and Harmful Code.  Licensee will ensure that each Application contains protections that are adequate to keep secure and prevent the interception of any data transmitted to and from such Application or the API Platform. Licensee will ensure that each Application transmits data with a protocol at least as secure as 128-bit SSL encryption, and in any event with protocols that are at least as secure as those being accepted by the API and/or the API Platform.  Licensee will not attempt to circumvent any security measures or technical limitations of the API and/or the API Platform.  Licensee will immediately notify PXCSM of any security deficiencies (including without limitation any actual or suspected theft, loss or misuse of data or actual or suspected vulnerabilities that may result in a theft, loss or misuse of data) that Licensee discovers or suspects in connection with the API, any Application or API Data, such notification to be made via the contact information provided on the API Platform’s developer website, as currently located at https://developer.API.com.   Licensee will not include (or permit to be included) in or in connection with an Application any spyware, malware, virus, worm, Trojan horse or other malicious or harmful code, or any software application not expressly and knowingly authorized by each applicable User prior to being downloaded or installed.

4.              API Data.  Licensee will not, and Licensee will not permit or enable an Application or any third party to:  (i) use any automated means (e.g., scraping, crawling, spidering or robots) to access, query or obtain any API Data; or (ii) except as expressly permitted by the Specifications, archive, store, modify or replace any API Data (including by changing the order in which API Data are originally made available by PXCSM or intermixing data from sources other than PXCSM with personal or personally identifiable API Data).  Licensee will only request such API Data as is necessary to operate each Application and that PXCSM and the User have authorized Licensee to request.  Licensee shall comply with all applicable laws, rules and regulations with respect to API Data.  Licensee will delete any and all API Data upon request by PXCSM.  Notwithstanding the foregoing, nothing in this Section 4 shall apply to the extent that it would constitute a control over the end use of any API Data supplied by the U.S. Department of Health and Human Services and transmitted to Licensee using the HHS API.

5.               Users; User Data.

(a)            API Authorization.  Licensee will ensure that, before each User initially uses an Application to access the API Platform, such User (a) is presented with an authorization request for such Application that identifies the Profiles of User Data that the Application may access on the API Platform, and that otherwise complies with all Specifications applicable to such authorization requests; and (b) has affirmatively granted such authorization.  Licensee will record the dates and times of such authorization for each applicable User and Application, and will maintain and make available such records to PXCSM upon PXCSM’s request.  PXCSM may, at any time and without reason or prior notice, require Licensee to re-obtain such authorization from any or all Users.

(b)            Liability.  Licensee will be responsible and liable for any acts or omissions of Users and any other user of each Application, including acts or omissions that would constitute a breach of this Agreement if such acts or omissions were undertaken by Licensee.

(c)            User Data.  As between Licensee and PXCSM, Licensee is solely responsible for any User Data (and any other data and information) collected by Licensee or through each Application, including the completeness and accuracy thereof and the legality of its collection and processing (including the transmission of any User Data to or through the API Platform).  In addition to complying with all terms and conditions imposed with respect to API Data under Section 4 above, Licensee will comply with the following additional terms and conditions with respect to User Data.  Licensee will ensure that each Application does not collect User Data from or concerning any User unless Licensee first informs such User, through a Privacy Policy made available to such User prior to downloading or using such Application and prominently and conspicuously posted at each location(s) where such User Data is collected, about the types of User Data being collected and how such User Data may be used and disclosed, and obtains the User’s affirmative “opt-in” consent to such uses and disclosures.  Such Privacy Policy will be consistent with Licensee’s obligations herein and with PXCSM’s rights under the API Privacy Policy, currently available at https://developer.API.com.  Licensee’s collection, use and disclosure of User Data shall not conflict with either the Licensee Privacy Policy or the API Privacy Policy.  Without limiting the foregoing, and regardless of whether the applicable User has consented, Licensee shall not (a) use or disclose for marketing purposes any User Data or other personal or personally-identifiable information received by Licensee or an Application from or through PXCSM or the API Platform, or by using any of the API Materials; or (b) aggregate any such data (or use or disclose any such aggregated data) for any purpose.

6.              Monitoring.  Licensee will provide PXCSM with any information or materials that PXCSM requests to verify Licensee’s compliance with this Agreement and the Specifications and, if applicable, the Other Terms, including a copy of each Application and one or more test accounts that will enable PXCSM to access each Application in its entirety free of charge.  Licensee acknowledges and agrees that PXCSM may (but is not obligated to) monitor the API Materials and API Data and Licensee’s access thereto and use thereof for any purpose, including to ensure quality and to verify compliance with this Agreement and any Additional Agreement.  Licensee will provide PXCSM with continuous means to carry out such monitoring at no charge.  Licensee will not interfere with such monitoring or otherwise obscure from PXCSM any activity in connection with the API Materials and API Data, and PXCSM may use any technical means to overcome such interference.

7.              Responsibility for Development.  Licensee will be solely responsible for all development and distribution of Applications, including all related costs, expenses, losses and liabilities.

8.              Responsibility for Service; Support.  As between Licensee and PXCSM, Licensee is solely responsible for all aspects of each Application, and Licensee acknowledges and agrees that PXCSM will not provide or be required to provide any technical or other support services to Licensee or any User in connection with any API Materials or API Data, including with respect to integration of the API with an Application.  PXCSM is not responsible for monitoring or policing any dispute related to an Application or its use or the use of any API Materials or API Data that may arise between or among Licensee, any User, and/or any other third party.  Licensee’s use of the API Materials and API Data is at Licensee’s own risk, and Licensee is solely responsible for any damage that results from the use of the API Materials or API Data, including any damage to Licensee’s or any Users’ computer systems or networks or any loss of data.  In addition, Licensee is solely responsible for such other matters as may be set forth in any Additional Agreement.

9.              Compliance With Laws.  Licensee will comply with all applicable laws, regulations and policies related to the development, marketing, sale, distribution and use of each Application.  Upon PXCSM’s request, Licensee will promptly provide to PXCSM copies of any regulatory approvals or other clearances.  Licensee shall not seek any regulatory permissions or make any determinations that may result in PXCSM, its affiliates or the API Platform being deemed regulated or that may impose any obligations or limitations on PXCSM or its affiliates.

10.           Confidential Information.  Licensee’s use of the API Materials may involve access to confidential, proprietary or trade secret information or materials of PXCSM (and its affiliates, licensors, suppliers, service providers, business partners or customers) (“Confidential Information”).  For the avoidance of doubt, and without limitation, all API Materials and API Data (including User Data and other personal or personally identifiable information) constitute Confidential Information.  Licensee will:  (a) hold the Confidential Information in trust and confidence; (b) use the Confidential Information only as expressly permitted in this Agreement (and not for the benefit of any third party), and not in any manner or for any purpose other than as expressly permitted in this Agreement; (c) not reproduce Confidential Information except as necessary to fulfill Licensee’s obligations hereunder; and (d) not make available to any third party, directly or indirectly, any Confidential Information without PXCSM’s express prior written consent.  Notwithstanding the foregoing, nothing in the foregoing sentence shall apply to the extent that it would constitute a control over the end use of any API Data supplied by the U.S. Department of Health and Human Services and transmitted to Licensee using the HHS API. Licensee will develop, implement, maintain and monitor a comprehensive information security program that contains administrative, technical and physical safeguards that meet or exceed industry best practices, requirements mandated by applicable law and other requirements provided by PXCSM from time to time to protect Confidential Information against unauthorized access or disclosure, and unauthorized, unlawful or accidental loss, destruction, acquisition or damage.   Licensee will be solely responsible and liable for all use and disclosure of Confidential Information by or through Licensee, Users or an Application.  Upon any expiration or termination of this Agreement, Licensee will immediately delete all copies of Confidential Information in its possession, custody or control.  Licensee acknowledges and agrees that Licensee’s breach or threatened breach of this Section 10 may cause PXCSM irreparable harm and significant injury, the amount of which may be difficult to estimate and ascertain, thus making inadequate any remedy at law or in damages.  Therefore, Licensee agrees that PXCSM is entitled to injunctive relief by any court of competent jurisdiction enjoining any threatened or actual breach of this Agreement and for any other relief that such court deems appropriate, in addition to any other remedy or remedies available at law or in equity.

11.           Ownership.  All right, title and interest (including all intellectual property rights) in and to the API Materials, the API Data and other Confidential Information are the sole property of and reserved to PXCSM and/or its licensors or suppliers, as applicable, and no right, title or interest in any API Materials, API Data or other Confidential Information are transferred to Licensee as a result of this Agreement or Licensee’s access to or use of such API Materials, API Data or other Confidential Information.  Licensee will not contest or assist others in contesting the validity of any such rights.  All rights not expressly set forth herein are reserved by PXCSM and/or its licensors or suppliers, as applicable, and no implied rights or licenses are granted to Licensee pursuant to this Agreement.  Licensee acknowledges and agrees that it receives no rights, licenses or interests in or to any patents, patent applications, trademarks, trade names or service marks of PXCSM or its affiliates, licensors, suppliers or other third parties pursuant to this Agreement.  Licensee hereby irrevocably assigns and agrees to irrevocably assign, without charge, all intellectual property rights relating to oral and written comments and suggestions (“Feedback”) provided by Licensee relating to the API.  At PXCSM’s expense, Licensee shall take all actions deemed necessary by PXCSM in order for PXCSM to record, perfect and maintain its rights in and to the Feedback.  Without limiting the foregoing, PXCSM shall have an unlimited, worldwide, royalty-free right to use and modify all Feedback.  Subject to the foregoing provisions of this Section 11, Licensee retains all rights, title and interest that it may have in and to any other intellectual property rights embodied in or associated with any Application.

12.           Trademarks.  Subject to the terms and conditions of this Agreement, PXCSM may grant to Licensee in certain circumstances, and solely while this Agreement is in effect (as provided herein or as may be provided in any Additional Agreement), a limited, non-exclusive, non-transferable, non-sublicensable license to use the API Marks, solely (a) in connection with an Application for which PXCSM has issued Licensee a then-valid Production Key; and (b) consistent with good trademark practice and PXCSM’s Brand Usage Guidelines, to be provided to Licensee by PXCSM as applicable.  PXCSM may update the Brand Usage Guidelines and the API Marks from time to time, and Licensee shall comply with the then-current Brand Usage Guidelines and use only the then-current API Marks.  No other rights are granted herein, except as expressly set forth in this Agreement.  Licensee agrees that PXCSM and/or its licensors own and maintain all right, title and interest in and to the API Marks, and Licensee acknowledges the value of the API Marks, and that any and all goodwill generated by Licensee in the API Marks will inure to the sole benefit of PXCSM and/or its licensors, as applicable.  Licensee shall not alter the API Marks, or use the API Marks in any manner that might prejudice, tarnish or damage the reputation of PXCSM or its licensors, the API Marks, or the products or services of PXCSM or its licensors.  PXCSM may monitor Licensee’s use of the API Marks, and, at PXCSM’s request, Licensee will provide to PXCSM copies of any materials bearing the API Marks.  PXCSM may terminate the rights granted to Licensee under this Section 12 for any reason and without prior notice.  Upon such termination, Licensee shall immediately cease all use of the API Marks.  Neither this Agreement nor the use of the API Marks by Licensee shall create, or be deemed to create, responsibility or liability on the part of PXCSM for the acts or omissions of Licensee.

13.           Fees.  PXCSM reserves the right to implement fees and payment terms with respect to Licensee’s continued use of any API Materials or API Data, at any time and in PXCSM’s sole discretion.

14.           Changes.  PXCSM reserves the right to change any API Materials or API Data at any time, and for any or no reason, and PXCSM bears no responsibility or liability for such actions.  PXCSM reserves the right to release subsequent versions of the API and to require Licensee to use the most recent version thereof, and Licensee agrees that it is Licensee’s responsibility to ensure, at Licensee’s own cost, that Licensee’s access to and use of any API Materials is compatible with PXCSM’s then-current requirements.

15.           Term; Suspension/Termination.  This Agreement will remain effective until terminated in accordance with its terms.  Either party may terminate this Agreement immediately upon notice to the other party.  PXCSM reserves the right in its discretion to immediately terminate this Agreement, and/or suspend (temporarily or permanently), terminate or revoke Licensee’s, an Application’s and/or any User’s access to or use of any or all API Materials, API Marks, API Data and/or the API Platform (including by revoking or suspending any API Key), in whole or in part, at any time and for any reason (including if PXCSM knows of or suspects that such Licensee, Application or User has a security deficiency, or has inappropriately accessed, used or disclosed API Data or may otherwise threaten or damage the reputation(s) of API, PXCSM or any of its affiliates), with or without cause or notice to Licensee, and PXCSM bears no responsibility or liability for any such suspension, termination or revocation.  Further, any licenses to Licensee contained in this Agreement will immediately and automatically terminate, without notice to Licensee, (a) if at any time Licensee does not timely comply with this Agreement, or (b) in the event of any expiration or termination of any Additional Agreement.  Upon termination of this Agreement by either party or upon suspension, termination or revocation of Licensee’s and/or an Application’s access to the API by PXCSM, any and all licenses Licensee may have with respect to the API Materials, API Marks and API Data will immediately terminate, and Licensee will immediately cease using all API Materials, API Marks and API Data and delete any API Materials, API Marks and API Data in its possession or control. Sections 1, 3–11, 15–19, and this Section 15, will survive, to the extent applicable, any expiration or termination of this Agreement and will continue to bind Licensee following such expiration or termination.  Termination or expiration of this Agreement shall not, in and of itself, have any effect on any Additional Agreement.

16.           Disclaimers.  ALL API MATERIALS, API MARKS AND API DATA PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMITTED BY LAW, PXCSM AND ITS AFFILIATES AND ITS AND THEIR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, BUSINESS PARTNERS AND CUSTOMERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  PXCSM AND ITS AFFILIATES AND ITS AND THEIR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, BUSINESS PARTNERS AND CUSTOMERS DO NOT WARRANT THAT ACCESS TO OR USE OF ANY API MATERIALS, API MARKS OR API DATA WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, OR THAT DEFECTS WILL BE CORRECTED. LICENSEE ACKNOWLEDGES THAT LICENSEE IS RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, COMPUTER HARDWARE, SOFTWARE AND OTHER EQUIPMENT, MATERIALS AND THIRD-PARTY LICENSES AND CONSENTS NEEDED TO USE EACH APPLICATION AND THE API MATERIALS AND API MARKS, AND FOR ALL CHARGES RELATED THERETO.  LICENSEE’S USE OF ANY API MATERIALS, API MARKS AND API DATA PROVIDED IN CONNECTION WITH THIS AGREEMENT AND ANY APPLICATION IS ENTIRELY AT LICENSEE’S OWN RISK.

17.           Limitation of Liability; Indemnification.  Notwithstanding anything to the contrary in this Agreement, the following terms and conditions shall apply with respect to this Agreement and the API Materials, API Marks and API Data:

(a)            Limitation of Liability.  NEITHER PXCSM NOR ITS AFFILIATES OR ITS OR THEIR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, BUSINESS PARTNERS OR CUSTOMERS, OR ANY DIRECTOR, OFFICER, EMPLOYEE, CONSULTANT, AGENT OR OTHER REPRESENTATIVE OF ANY OF THE FOREGOING, WILL BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE API MATERIALS, API MARKS, API DATA OR THIS AGREEMENT, OR FOR DAMAGES ARISING FROM ANY TERMINATION OR SUSPENSION OF THIS AGREEMENT OR OF LICENSEE’S USE OF OR ACCESS TO THE API MATERIALS, API MARKS OR API DATA.  LICENSEE’S SOLE REMEDY FOR DISSATISFACTION WITH ANY API MATERIALS, API MARKS OR API DATA IS TO STOP USING THE API MATERIALS, API MARKS OR API DATA, AS APPLICABLE.  THE SOLE AND EXCLUSIVE MAXIMUM LIABILITY OF PXCSM AND ITS AFFILIATES AND ITS AND THEIR LICENSORS, SUPPLIERS, SERVICE PROVIDERS, BUSINESS PARTNERS AND CUSTOMERS FOR ANY DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY OR OTHERWISE, IN CONNECTION WITH THE API MATERIALS, API MARKS, API DATA OR THIS AGREEMENT, WILL BE LIMITED TO THE TOTAL AMOUNTS PAID BY LICENSEE, IF ANY, TO USE THE API KEY.

(b)            Indemnification.  Licensee agrees to indemnify, defend and hold PXCSM, its affiliates and its and their licensors, suppliers, service providers, business partners and customers, and all directors, officers, employees, consultants, agents and other representatives of all of the foregoing, harmless from and against any claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable attorney’s fees), arising out of or in connection with any claim, action or proceeding (“Claims”) that arise directly or indirectly out of:  (i) Licensee’s access to, use of or other activities in connection with the API or any other API Materials, or the API Marks or API Data; (ii) each Application, its use and any transactions conducted through it or User Data transmitted through it; (iii) the operation of Licensee’s business in connection with the API Materials, API Marks or API Data, (iv) any suspension or termination of an Application or an Application’s access to or use of the API Platform (including any suspension or termination caused by PXCSM); (v) any breach by Licensee of any representations, warranties, covenants or obligations under this Agreement or, if applicable, any Additional Agreement; or (vi) any claim that an Application (including any component thereof), or PXCSM’s exercise of its rights under this Agreement, infringes, misappropriates or violates any third-party intellectual property or proprietary rights.  At PXCSM’s sole election, Licensee will assume control of the defense and settlement of any Claim that is subject to indemnification by Licensee pursuant to this Section 17 (provided that PXCSM may at any time thereafter elect to take over control of the defense and settlement of any such Claim, and provided that Licensee will not settle any such Claim without PXCSM’s express prior written consent).

18.           Governing Law; Jurisdiction.  This Agreement is governed by and shall be construed in accordance with the laws of the State of Illinois, U.S.A., without regard to its principles of conflicts of law.  Licensee agrees to exclusive jurisdiction of the federal and state courts located in Illinois, U.S.A., and waives any jurisdictional, venue or inconvenient forum objections to such courts.

19.           Miscellaneous.  Unless the context requires otherwise, as used in this Agreement, the term “including” means “including without limitation” and the term “include(s)” means “include(s) without limitation.”  Licensee acknowledges and agrees that this Agreement will not be deemed to create an exclusive relationship between PXCSM and Licensee, and that PXCSM and/or its affiliates may develop or be developing products or services that may compete with any Application or any other products or services, and that PXCSM and/or its affiliates may enter into agreements, arrangements and relationships similar to the relationship contemplated by or relating to products or services contemplated by this Agreement.  Licensee will not assign, transfer or sublicense any or all of its rights or obligations under this Agreement without PXCSM’s express prior written consent.  PXCSM may assign, transfer or sublicense any or all of its rights or obligations under this Agreement without restriction.  Any notices permitted or required to be given hereunder by PXCSM to Licensee may be given by posting on the API Platform, or by e-mail or postal mail to any address provided by Licensee to PXCSM, or by any other reasonable means.  Any notices permitted or required to be given hereunder by Licensee to PXCSM shall be given via the contact information provided on the API Platform’s developer website, as currently located at http://developer.API.com.  Except for any Additional Agreement, this Agreement (together with all policies referred to herein) constitutes the entire agreement between Licensee and PXCSM relating to the subject matter herein, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between Licensee and PXCSM relating to such subject matter, other than any Additional Agreement.  Except as expressly provided herein, nothing in this Agreement will be deemed to confer any third-party rights or benefits.