3scale API Management Software Subscription Agreement
1. GENERAL CONDITIONS
1.1. These Terms of Service (“Terms”) refer exclusively to the usage of 3scale’s DEVELOPER, POWER, and PRO solutions. They are valid for 3scale’s customers as well as the users who access the customers APIs and are limited to the use of the Software provided by 3scale. API/Web Services (“Web Services”) marketed through the 3scale API Management solution Software might have their own Terms of Service (“Web Service Provider Terms”) that any user will have to accept before contracting the Web Service. The content of these Web Service Provider Terms, their legality or consequences are not the responsibility of 3scale.
1.2. The ENTERPRISE terms of service are available upon request to firstname.lastname@example.org.
1.3. These Terms may be updated by 3scale. You understand and agree that you are solely responsible for reviewing these Terms from time to time. You can always review the most current version of these Terms. Any continued use of the Software by you after such amended Terms have been posted or information regarding such amendment has been sent to you, shall be deemed your consent and agreement to such amended Terms.
1.4. These Terms contain the entire agreement of the parties to the use of the Software, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties. The only exception to this can be a “3scale Enterprise Solution” contract written and signed with Providers for the Web Service provided by 3scale.
1.5. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
1.6. The section titles in the Agreement are for convenience only and have no legal or contractual effect.
1.7. This Agreement shall be construed in accordance with the governing law, without regard to its conflict of the law’s principles.
You are contracting with:
The governing law is the Delaware and controlling United States federal law.
2. PURCHASED SERVICES
3scale shall make the Purchased Services available to you (“Customer”) to this Agreement and during a subscription term. You agree that your purchases here under are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
2.1.1 3scale provides the necessary infrastructure to API and Web Services Providers to offer contracts for Web Services, publicize them, monitor the usage and obtain payment for them.
2.1.2 3scale offers one single type of account with which a user can carry out actions including, but not limited to, the following:
Publish web service information
- Define and publish web service contracts
Contract offered services by the customer
- Monitor (provided/contracted) service usage
2.2. Software and License Grant, Customer Data
2.2.1 3scale hereby provides Customer with a limited, non-exclusive, non-transferable and terminable license to access and use 3scale’s API Management solution (“Software”) solely for Customer’s operations. Customer’s operations include the right to allow Customer’s customer access to the Software interfaces to transact business with Customer. Customer may permit its third party contractors, subject to confidentiality and use obligations at least as restrictive as those set forth in this Agreement, to access and use the Software solely in connection with services provided by such third party contractors to Customer.
2.2.2 The terms of this Agreement shall also apply to any modules or features subsequently provided by 3scale to Customer, and/or that have been purchased by Customer that augment or enhance the current business application.
2.2.3 3scale shall host the Software and may update the functionality and user interface of the Software from time to time in its sole discretion and in accordance with Section 2.3 of this Agreement as part of its ongoing mission to improve the Software and Customers’ use of the Software.
2.2.4 No other rights with respect to the Software are granted under this Agreement. Without limiting the generality of the foregoing the Software used by Customer is subject to the payment obligations set forth in the Fees and Payment Section of this Agreement.
2.2.5 The parties acknowledge, that as between them, all data entered by Customer or its representatives into the Software or 3scale’s systems (“Customer Data”) is owned by Customer. Under no circumstances will 3scale withhold the Customer Data from Customer or prevent Customer from obtaining access to the Customer Data.
2.3. Software Upgrades
2.3.1 “Upgrades” means new versions of, and updates to, the Portal and Admin dashboard of the Software, whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of the Platform.
2.3.2 Customer acknowledges that from time to time 3scale may apply Upgrades to the Platform, and that such Upgrades may result in changes the appearance and/or functionality of the Software.
2.4.1 The license granted in this Agreement and Customer’s use of the Software shall not include service bureau use, outsourcing, renting or time-sharing of the Software.
2.4.2 Customer agrees that the license granted herein is not a concurrent user license and that the rights granted to Customer are provided to Customer on the condition that Customer does not (and does not allow any third party to) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Software or any part thereof otherwise attempt to discover any source code, modify the Software in any manner or form, or use unauthorized modified versions of the Software, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Software.
2.4.3 Customer is expressly prohibited from sublicensing use of the Software to any third parties. Customer agrees that 3scale shall own all rights, title and interest in and to all intellectual property rights in the Software.
2.4.4 Except as provided in this Agreement, the license granted to Customer does not convey any rights in the Software, expressed or implied, or ownership in the Software or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by 3scale.
2.5. Customer Support
2.5.1 Customer will be responsible for receiving and responding to all calls for support from his End Users for the Software and for performing initial problem analysis, diagnosis, and replication of the problem at Customer’s location. Problems will be deemed replicated if they occur persistently, if it seems reasonably likely they originate in the Software, and if Customer reasonably cooperates with 3scale by providing logs and other information about the problem, its occurrences, and provides assistance to 3scale to help isolate the problem.
2.5.2 3scale provides online and email technical support. Customer shall contact 3scale Support by email at the following address: email@example.com. In order for 3scale to process Customer’s support request, Customer shall: (1) Identify himself and the API affected, (2) Describe the nature of the outage, (3) Provide contact information in the form of email for follow up communications
2.5.3 Exceptions: 3scale has no obligation to provide Support Services for problems in the operation or performance of the Software caused by a non-3scale software or hardware product. If 3scale determines that it is necessary to perform Services for a problem caused by a Customer-Generated Error, then 3scale will notify Customer thereof as soon as 3scale is aware of such Customer-Generated Error and, upon Customer’s written request, 3scale will perform such professional services and invoice Customer at 3scale’s then-current published time and materials rates for all such professional services performed by 3scale.
2.6. Service Levels and Maintenance
2.6.1 3scale guarantees customers of a PRO plan only a 99.5% Software API Uptime (“Uptime”) where Uptime shall mean 100% minus the percentage of time that the 3scale Software is inaccessible or not operational over a calendar month.
2.6.2 3scale reserves the right to refuse connections/traffic without warning at traffic volumes above 5x the Per second allowed rate (“Per second allowed rate” being 1.75x the average number of queries per second based on the contracted traffic tier)
2.6.3 Customer can deploy API Traffic Management agents in as many environments as desired without additional license cost – both production and non-production. Traffic generated in both Production and non-Production costs will count towards service quotas and threshold.
2.7. On Boarding (for PRO plan Customers only)
The On-boarding service (worth $1,500) provided by 3scale’s technical team consists of 2 (two) sessions of 1 (one) hour each for training and support purposes related to the deployment of 3scale’s Software.
3. CONNECTION OF YOUR API TO THE 3SCALE BACK-END
3.1. 3scale provides the necessary means to Customer to connect their API with the 3scale back-end: via (1) an on-premise API Proxy, via (2) a Plug-in that can be downloaded from the Plug-in page or via (3) the use of the 3scale API.
3.2 By subscribing to one of the DEVELOPER, POWER or PRO plans you recognize, accept and abides to the following contractual rules in terms of Hits on your API and Hits on the 3scale back-end:
(on 3scale Server)
Per Second Allowed Rate
3.3 Above PRO 3M Customer will have to upgrade to an Enterprise contract. For more details please contact firstname.lastname@example.org.
3.4 3scale reserves the right to refuse connections/traffic without warning at traffic volumes above 5x the Per second allowed rate (“Per second allowed rate” being 1.75x the average number of queries per second based on the contracted traffic tier)
3.5 Maintenance includes (1) Integration of releases of updates of features and functionalities included in the portal infrastructure and (2) Patching/Bugs correction but does not include any maintenance of its content.
4. FEES AND PAYMENT
4.1 Customer subscribed to 3scale DEVELOPER, POWER or PRO plans will pay a monthly-based subscription fee for the license and services detailed in this Agreement and based on a subscription price with the capacity and traffic limits herein as detailed in Section 3. All fees are non-refundable and guaranteed.
3scale’s API Management solution is offered under different plans depending on the API traffic and the included features. Please, find more information on http://www.3scale.net/pricing/.
4.2 Customer will be issued with a receipt of the services provided on a monthly basis. The receipt will reflect and automatically deduct the commission that 3scale charges for its service, if applicable, from the total earnings in the period.
4.3 The fees and other amounts required to be paid under this Agreement are exclusive of taxes. Customer will be responsible for and will reimburse 3scale for all sales, use, excise (but not corporate excise), or other similar state or local taxes. Such provision excludes 3scale’s income taxes, franchise taxes (including corporate excise taxes), taxes on 3scale’s property used to provide the services, or any other taxes for which Customer is exempt.
4.4 Customer will receive settlement of the amount stated in the receipt within 20 working days of the receipt being issued. Settlement will be made into the verified payment account configured by the provider on the day of settlement. All amounts are in U.S. dollars.
4.5 3scale shall automatically adjust list prices generally applicable to 3scale’s customers at the start of each calendar year.
4.6 Transaction History: unless Customer account has been disabled by 3scale or otherwise, Customer will be able to access to its monetary transactions in the system by logging in to the system with their access user name and password.
4.7 Yearly payment & Applicable Discount: Customer shall have the option of making yearly payments for 12 Months of Software licensing. Should Customer select the option to make annual prepayments, 3scale shall apply an 10% discount to the balance. Please contact email@example.com to arrange for such payment option.
5. CUSTOMER REGISTRATION
5.1 Customer must complete the 3scale registration process, in which case, Customer agrees to: (a) provide true, accurate, current and complete information about himself/herself or his/her company as prompted by the Service registration form (such information being the Registration Data) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
5.2 Customer will be able to select a preferred payment method to receive money generated by provision of web services through 3scale. The Registration Data in this case will include Bank or Account Data for the service in question. You are responsible for any failure in the payment caused by errors of the banking data provided in this process.
5.3 Registration is necessary to offer functionality that requires the Service to recognize a user. When a user registers, the information given contains certain Personally Identifiable Information including but not limited to a valid e-mail address, real name, address, country of residence and zip code. This personally Identifiable Information will be used to personalize and improve your experience of the service. This information will not be disclosed to any third-party without your explicit consent.
5.4 Customer declares that the information provided for the items organizational name, legal address, tax identifier, country of residence and contact email address are (a) true, accurate, current and complete information about himself/herself or his/her company as prompted by the Service registration form (such information being the Registration Data) and (b) will be maintained and promptly updated to keep it true, accurate, current and complete.
5.5 Customer can review and change Personally Identifiable Information, password or banking details at any time by going to the “Account” page area in the Administration Dashboard once signed into Customer’s account.
5.7 Customer will create a password and account during the Service registration process. Customer is responsible for maintaining the confidentiality of the password and account, and is fully responsible for all activities that occur under his/her password or account. Customer agrees to (a) immediately notify 3scale of any unauthorized use of the password or account or any other breach of security, and (b) ensure that Customer exits from the account at the end of each session. 3scale cannot and will not be liable for any loss or damage arising from failure to comply with the rules in this Section.
5.8 If Customer provides information of any kind which is untrue, inaccurate, not current or incomplete, or 3scale has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, 3scale has the right to suspend or terminate the account and refuse any and all current or future use of the Software (or any portion thereof).
6. CONTENT RESPONSIBILITY
6.1 In using 3scale Software, Customer understands that he is liable for all information, in whatever form, (Information) made available to his/her customers via the Software provided by 3scale. Customer agrees not to use the Software to:
6.1.1. Upload, post, email, transmit or otherwise make available any Information that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
6.1.2. Harm minors in any way.
6.2 Customer understands and agrees that unless expressly stated, 3scale in no way controls, verifies or endorses any of the information uploaded by Customer in the Software including listings, links, messages, advertisements and reviews. Customer also understands that 3scale is not responsible for Content made available through the Software.
6.3 Customer further acknowledges and agrees that 3scale shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
6.4 Customer understands and agrees that any uploading or posting will be at Customer’s sole risk and 3scale shall not be responsible to Customer in any way. Further, 3scale does not provide any warranty as to Customer’s use of third-party content, software or services that Customer obtains via the Software.
7. JOINT EFFORTS
7.1 Customer agrees that he will display the “Powered by 3scale” logo on the Software Developer Portal.
7.2 Customer agrees that 3scale may during the term of this Agreement issue press releases and make orally reference to the fact that Customer is a customer of 3scale. 3scale agrees that Customer may also (during the term of this Agreement) make reference, orally or in writing, that 3scale is a service provider of Customer
7.3 3scale reserves the right to use Customer’s Web Services description to configure examples in its press releases, marketing channels and any other publicity materials as well as the right to link to Customer’s site.
8. INTELLECTUAL PROPERTY RIGHTS, USE OF DATA, TRADE NAMES AND TRADEMARKS
8.1 All right, title and interest and all Intellectual Property Rights in and to the Pre-Existing Materials of each respective Party or a third party shall
vest in and be the sole and exclusive property of that Party or such third party.
8.2 All right, title, and interest in and to the Software and all intellectual property rights in the foregoing will remain vested in 3scale.
8.3 Neither party will at any time do, permit or cause to be done, any act or thing that would tend to impair or dilute in Customer’s case, 3scale’s rights in the Software or either party’s trademarks, service marks, and trade names.
8.4 Customer acknowledges and agrees that 3scale may use aggregate data derived from Customer’s use of the Software hereunder provided that 3scale has anonymized such data. 3scale may use in its marketing and advertising the total number of users, total number of stored claim records, total transaction volumes, and other aggregate statistics to attract new customers. Customer further represents and warrants that the use of such data by 3scale will not infringe upon any person’s or entity’s intellectual property rights or other proprietary interests or invade any person’s or entity’s privacy. Further, the use of such data by 3scale will not result in any violation of applicable law or any agreement to which Customer is a party or by which Customer is bound. This section shall survive the termination of this Agreement with respect to data transmitted hereunder prior to the date of termination.
8.5 3scale will not contact Customer or Customer’s customers with third party advertising or promotion without Customer’s explicit permission. 3scale strongly value this relationship and do not want to compromise this in any way. 3scale will not sell, share, or rent this information to others in ways different from what is disclosed in this statement
8.6 Customer further acknowledges that 3scale may, in its sole discretion, preserve or disclose Customer’s Content, as well as Customer’s information, such as e-mail addresses, IP addresses, timestamps, and other user information, if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to comply with the legal process, enforce these Terms, respond to claims that any Content violates the right of third-parties; or to protect the rights, property, or personal safety of 3scale, its users or the general public.
9.1 Customer may terminate this Agreement at any point in time upon notification to 3scale.
9.2 Customer agrees that 3scale at its sole discretion, has the right (but not the obligation) to delete or deactivate Customer’s account, block Customer’s email or IP address, or otherwise terminate Customer’s access to or use of the Software (or any part thereof), immediately and without notice, and remove and discard any Content within the Site, for any reason, including, without limitation, if 3scale believes that Customer has acted inconsistently with these Terms. Further, Customer agrees that 3scale shall not be liable to Customer or any third-party for any termination of such access to the Site. Further, Customer agrees not to attempt to use the Software after said termination.
9.3 Upon the termination or expiration of this Agreement for any reason, Customer’s rights under this Agreement will cease, including all rights to use the Software.
9.4 No termination of this Agreement will affect any obligation to make payment of outstanding amounts owed by Customer to 3scale.
9.5 Unless stated in a supplementary license agreement, 3scale reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Software (or any part thereof) with or without notice. Customer agrees that 3scale shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Software.
10. LIMITED WARRANTY
10.1 3scale represents, warrants and covenants that the service will be provided in manner consistent with generally accepted industry standards, however, Customer expressly agrees that the use of the Software and its content is at Customer’s sole risk and that Customers will be solely responsible for any damage to Customer’s computer system or loss of data that results from the downloads of files, software services and/or any graphics or other content.
10.2 3scale represents, warrants and covenants that it has the authority and the right to enter into this Agreement, to perform services and provide Software under this Agreement, and that its obligations under this Agreement are not in conflict with any 3scale obligations to any third parties.
10.4 3scale represents, warrants and covenants that it and its permitted subcontractors will render services and provided Software using personnel that have the necessary knowledge, training, skills, experience, qualifications and resources to provide and perform the services in accordance with this Agreement, and will render services and provide the Software in a prompt, professional, diligent, and workmanlike manner, consistent with industry standards applicable to the performance of similar services and software.
10.6 3scale’s warranties under this Agreement will be void and of no effect with respect to any Software which has been modified by Customer or by any party other than 3scale or which is used in any manner other than as authorized under this Agreement.
11. LIMITATION OF LIABILITY
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT 3SCALE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF 3SCALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
CUSTOMER HEREBY AGREES, AT HIS/HER EXPENSE, TO INDEMNIFY, DEFEND AND HOLD 3SCALE HARMLESS FROM AND AGAINST ANY LOSS, COST, DAMAGES, LIABILITY, AND/OR EXPENSE ARISING OUT OF OR RELATING TO (A) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS OF INFRINGEMENT BASED ON INFORMATION, DATA OR CONTENT CUSTOMER SUBMITTED IN CONNECTION WITH THE SOFTWARE, (B) ANY FRAUD, MANIPULATION OR OTHER BREACH OF THESE TERMS BY CUSTOMER, OR (C) THIRD PARTY CLAIMS, ACTIONS OR ALLEGATIONS BROUGHT AGAINST 3SCALE ARISING OUT OF CUSTOMER’S USE OF THE SOFTWARE.
13.1 This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties, although the 3scale reserves the right to name Customer as use of the Software.
13.2 The Limitation of Liability, Intellectual Property Rights, Use of Data, Trade Names and Trademarks, Limited Warranty, Fees and Payments, and Miscellaneous Sections will survive termination or expiration of this Agreement.
13.3 3scale shall not be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Software date shall be extended to the extent of any delay resulting from any force majeure event.
13.4 Except for the sole purpose of complying with its obligations in the Agreement, 3scale will not modify any Customer Data, merge or commingle it with other data, commercially exploit it, disclose it, share it, sell it, rent it, provide access to it, or do anything that may in any manner adversely affect the integrity, security or confidentiality of the Customer Data.
13.5 Customer understands that the technical processing and transmission of the Software, including Customer/s Information, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.