BY INTERACTING IN ANY WAY WITH THE FOURSQUARE API, INCLUDING, BUT NOT LIMITED TO REQUESTING CREDENTIALS OR MAKING API CALLS, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("YOU") UNCONDITIONALLY CONSENT AND AGREE TO BE BOUND BY AND A PARTY TO THESE TERMS AND CONDITIONS ("AGREEMENT").
1. GRANT OF LICENSE - Subject to your ("Licensee") full compliance with all of the terms and conditions of this API Agreement ("Agreement") and the Foursquare Platform Policy, Foursquare Labs, Inc. ("Foursquare") grants Licensee a non-exclusive, revocable, nonsublicensable, nontransferable license to download and use the Foursquare application program interface and other materials provided by Foursquare (collectively, "API") to develop, reproduce, display and distribute applications, websites and/or services (collectively "Applications") that interoperate with Foursquare's Foursquare® service, Foursquare.com or any other web property owned by Foursquare (collectively "Foursquare Service"). Licensee may not install or use the API for any other purpose without Foursquare's prior written consent. Licensee shall not use the API in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email ("spam"), multi-level marketing proposals, hate materials, hacking/surveillance/interception/descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories, automatic or autonomous control of vehicles, aircraft or other mechanical devices, dispatch or fleet management, or emergency or life-saving purposes. For Applications that provide real-time route guidance, Licensee must have an end user license agreement that includes the following notice: YOUR USE OF THIS APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.
2. PROPRIETARY RIGHTS - As between Foursquare and Licensee, the API, the Foursquare Service, any and all content, documentation, code, data and related materials made available through the API, any and all data and information collected and/or derived from the Foursquare Service (including, without limitation, user data received from the Foursquare Service or submitted to the Foursquare Service), and all intellectual property rights in and to all of the foregoing, are and shall at all times remain the sole and exclusive property of Foursquare and are protected by applicable intellectual property laws and treaties.
3. OTHER RESTRICTIONS - Except as expressly and unambiguously authorized under this Agreement, Licensee may not (i) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the API; (ii) otherwise use the API on behalf of any third party; or (iii) design or permit the Application to disable, override or otherwise interfere with any Foursquare-implemented communications to end users, consent panels, user settings, alerts, warnings or the like, including but not limited to those intended to notify the end user that his or her user data or location data is being collected or used, or intended to obtain consent for such collection or use. Foursquare expressly reserves the right to limit the number and/or frequency of API requests in its sole discretion.
4. MODIFICATIONS TO THIS AGREEMENT. Foursquare reserves the right, in its sole discretion to modify this Agreement and/or the Foursquare Platform Policy at any time by posting a notice to developer.foursquare.com. You shall be responsible for reviewing and becoming familiar with any such modification. Such modifications are effective upon first posting or notification and use of the Foursquare API by Licensee following any such notification constitutes Licensee's acceptance of the terms and conditions of this Agreement as modified.
5. WARRANTY DISCLAIMER - THE API IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, FOURSQUARE AND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE API, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, FOURSQUARE DISCLAIMS ANY WARRANTY THAT LICENSEE'S USE OF THE API WILL BE UNINTERRUPTED OR ERROR FREE.
6. SUPPORT AND UPGRADES - This Agreement does not entitle Licensee to any support for the APIs, unless Licensee makes separate arrangements with Foursquare and pays all fees associated with such support. Any such support provided by Foursquare shall be subject to the terms of this Agreement as modified by the associated support Agreement.
7. LIABILITY LIMITATION - REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL FOURSQUARE OR ITS VENDORS, BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE API, EVEN IF FOURSQUARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, FOURSQUARE DISCLAIMS ALL LIABILITY OF ANY KIND OF FOURSQUARE'S VENDORS.
8. INDEMNITY - Licensee agrees that Foursquare shall have no liability whatsoever for any use Licensee makes of the API. Licensee shall indemnify and hold harmless Foursquare from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys' fees) arising from Licensee's use of the API.
9. TERM AND TERMINATION - This Agreement shall continue until terminated as set forth in this Section. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the license granted hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, destroy and remove from all computers, hard drives, networks, and other storage media all copies of the API and all Foursquare User Data, and shall so certify to Foursquare that such actions have occurred. Foursquare shall have the right to inspect and audit Licensee's facilities to confirm the foregoing. Sections 7 through 12 and all accrued rights to payment shall survive termination of this Agreement.
10. GOVERNMENT USE - If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the API are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The API are a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the API by the Government shall be governed solely by the terms of this Agreement.
11. EXPORT CONTROLS - Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the API in violation of any such restrictions, laws or regulations. By downloading or using the API, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
12. MISCELLANEOUS - Unless the parties have entered into a written amendment to this agreement that is signed by both parties regarding the Foursquare API, this Agreement and the Foursquare Platform Policy constitute the entire agreement between Licensee and Foursquare pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. This Agreement, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Foursquare, any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Southern District of New York or in state court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of this Agreement shall be entitled to an award of its costs and attorneys' fees. This Agreement may be amended only by a writing executed by Foursquare. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Foursquare to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Foursquare's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Foursquare's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Foursquare expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.