API LICENSE AGREEMENT
This API License Agreement (this “Agreement”) is a binding contract between You (defined herein) and A&D Engineering, Inc., 4622 Runway Boulevard, Ann Arbor, MI 48108 (“A&D,” “we,” or “us”). This Agreement governs your access to and use of the A&D Connected Solutions application programming interface, including any associated documentation, software, and other related materials provided by us (collectively, the “API”).
PLEASE READ THE API LICENSE AGREEMENT CAREFULLY. BY CLICKING THE “I AGREE” BUTTON OR BY ACCESSING OR USING THE API, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE API.
2. Definitions.
a) “Aggregated Statistics” means data and information related to Your use of the API that is compiled by us in an aggregate and anonymized manner, including to analyze and improve the API and related services. Aggregated Statistics do not include Customer Data.
b) “API” means the A&D Connected Solutions application programming interface and any associated hardware, tools, documentation, updates, and other related materials made available by A&D under the Agreement.
c) “Authorized User” means Your employees, consultants, contractors, and agents (i) who are authorized by You to access and use the API under the rights granted to You pursuant to this Agreement.
d) “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of You or an Authorized User through the API.
e) “Third-Party Products” means any software, tools, services, or other products provided by a third party that are made available to You or required for use with the API but are not owned or controlled by A&D.
f) “You” or “Your” means the individual, company, organization, or other legal entity accessing or using the API or otherwise exercising rights under this Agreement. If you are accepting this Agreement on behalf of a company, organization, or other entity, “You” or “Your” also refers to that company, organization, or entity, and you represent and warrant that you have the authority to bind such entity to this Agreement.
g) “Your Applications” means any applications developed by You to interact with the API.
2. License Grant. Subject to and conditioned on your compliance with all terms and conditions set forth in this Agreement, we hereby grant You a limited, revocable, non-exclusive, non-transferable, non-sublicensable license during the term of the Agreement to use the API solely for the purpose of developing, supporting, and maintaining Your Applications that will communicate and interoperate with the A&D healthcare and medical devices that have communication functions (“A&D Devices”). You acknowledge that there are no implied licenses granted under this Agreement. We reserve all rights that are not expressly granted. You may not use the API for any other purpose without our prior written consent. You must obtain an API Key through the registration process available at https://medical.andonline.com/API-license-agreement to use and access the API. You may not share your API Key with any third party, must keep your API Key and all log-in information secure, and must use the API Key as your sole means of accessing the API. Your API Key may be revoked at any time by us.
3. Use Restrictions. Except as expressly authorized under this Agreement, You may not:
a) copy, modify, or create derivative works of the API, in whole or in part;
b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the API;
c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the API, in whole or in part;
d) remove any proprietary notices from the API;
e) use the API in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
f) combine or integrate the API with any software, technology, services, or materials not authorized by A&D;
g) design or permit Your Applications to disable, override, or otherwise interfere with any A&D-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;
h) use the API in any of Your Applications to replicate or attempt to replace the user experience of A&D offering; or
i) attempt to cloak or conceal your identity or the identity of Your Applications when requesting authorization to use the API.
You will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on https://medical.andonline.com/API-license-agreement from time to time. In addition, You will 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, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities.
4. Your Applications. You agree to monitor the use of Your Applications for any activity that violates applicable laws, rules, and regulations or any terms and conditions of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of Your Applications from further use of Your Applications. You agree to provide a resource for users of Your Applications to report abuse of Your Applications. As between You and us, You are responsible for all acts and omissions of Your end users in connection with Your Application and their use of the API, if any. You agree that you are solely responsible for posting any privacy notices and obtaining any consents from Your end users required under applicable laws, rules, and regulations for their use of Your Applications.
5. Confidential Information. During the Term, A&D may disclose to You information about its business, products, designs, services, intellectual property, trade secrets, technical specifications, third-party confidential information, or other sensitive or proprietary information, whether oral, written, electronic, or other form or media, and whether or not marked or designated as confidential (collectively, “Confidential Information”). Confidential Information, however, does not include: (a) information that A&D makes generally available to the public; (b) information that You can demonstrate to have had rightfully in Your possession prior to disclosure to You by A&D; (c) information that is independently developed by You without the use of any Confidential Information; or (d) information that You rightfully obtain from a third party who has been given the right to transfer or disclose it by A&D. You agree to keep confidential and not to disclose, publish, or disseminate any Confidential Information to any third party. You further agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information. You agree not to use Confidential Information otherwise for Your own or any third party’s benefit without the prior written approval of an authorized representative of A&D in each instance. The rights and obligations of this Section shall remain in force for five (5) years from the date of disclosure of Confidential Information.
6. Third-Party Products. The API may interact with or rely on third-party software, tools, services, or other products (“Third-Party Products”) that are not owned, developed, or controlled by A&D. Such Third-Party Products are subject to their own terms and conditions, and You are responsible for complying with any applicable agreements governing their use. A&D makes no representations or warranties regarding Third-Party Products, including their availability, compatibility with the API, or suitability for Your intended use. A&D shall have no liability for any damages or losses arising out of or in connection with Your access to or use of Third-Party Products, including any failure of such products to function as expected or any disruption caused by their integration with the API. You are solely responsible for obtaining and maintaining any necessary licenses, permissions, or agreements required to use Third-Party Products in connection with the API. Any costs associated with Third-Party Products are solely Your responsibility.
7. Ownership and Intellectual Property Rights. You acknowledge that, as between you and A&D, (a) A&D owns all right, title, and interest, including all intellectual property rights, in and to the API, and (b) you own all right, title, and interest, including all intellectual property rights, in and to Your Applications, excluding the aforementioned rights in Section 7(a). You will use commercially reasonable efforts to safeguard the API (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. You will promptly notify us if You become aware of any infringement of any intellectual property rights in the API and will fully cooperate with us, in any legal action taken by us to enforce our intellectual property rights.
If you or any of your employees, contractors, and agents sends or transmits any communications or materials to us by mail, email, telephone, or otherwise, suggesting or recommending changes to the API, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), all such Feedback is and will be treated as non-confidential. You hereby assign to us on your behalf, and on behalf of Your employees, contractors, and agents, all right, title, and interest in, and we are free to use, without any attribution or compensation to You or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although we are not required to use any Feedback.
8. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, we may monitor Your use of the API and collect and compile Aggregated Statistics. As between A&D and You, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by A&D. You acknowledge that A&D may compile Aggregated Statistics based on Customer Data input into the API. You further agree that A&D may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law provided that such Aggregated Statistics do not identify You or Your Confidential Information.
9. Customer Data. You hereby grant A&D a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for A&D to provide the API to You, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
A&D will own all right, title, and interest in and to the Aggregated Statistics and any and all algorithms, processes, population-based activities, inventions, materials, techniques, know-how, and creations developed by or on behalf of A&D via its use of the Aggregated Data.
10. Fees. Your use of the API may be or may become subject to fees. A&D reserves the right to charge for the API and to change its fees from time to time, at its discretion.
Fees for A&D’s devices and associated services, including its data and cellular service, are set forth in the separate terms and condition and provided by A&D.
11. No Warranty. THE API IS PROVIDED “AS IS” AND A&D SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. A&D SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. A&D MAKES NO WARRANTY OF ANY KIND THAT THE API, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
12. Indemnification. You agree to indemnify, defend, and hold harmless A&D and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to (a) your use or misuse of the API, (b) your breach of this Agreement, and (c) Your Applications, including any end user’s use thereof. In the event we seek indemnification or defense from you under this provision, we will promptly notify you in writing of the claim(s) brought against us for which we seek indemnification or defense. We reserve the right, at our option and in our sole discretion, to assume full control of the defense of claims with legal counsel of our choice. You may not enter into any third-party agreement that would, in any manner whatsoever, constitute an admission of fault by us or bind us in any manner, without our prior written consent. In the event we assume control of the defense of such claim, we will not settle any such claim requiring payment from you without your prior written approval.
13. Limitations of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (a) 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; OR (b) ANY DAMAGES, IN THE AGGREGATE, IN EXCESS OF FIFTY DOLLARS EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE OR A&D WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. Term and Termination. The term of this Agreement commences when you access the API/acknowledge your acceptance of this Agreement by clicking the “I agree to terms of API License” button and will continue in effect until terminated as set forth in this Section (the “Term”). We may immediately terminate or suspend this Agreement, any rights granted herein, and/or your licenses under this Agreement, in our sole discretion at any time and for any reason, by providing notice to you or revoking access to the API. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement. You may terminate this Agreement at any time by ceasing your access to and use of the API. Upon termination of this Agreement for any reason all licenses and rights granted to you under this Agreement will also terminate and you must cease using, destroy, and permanently erase from all devices and systems you directly or indirectly control all copies of the API. Any terms that by their nature are intended to continue beyond the termination or expiration of this Agreement will survive termination. Termination will not limit any of A&D’s rights or remedies at law or in equity.
15. U.S. Government Rights. The API is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the API as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
16. Modifications. You acknowledge and agree that we have the right, in our sole discretion, to modify this Agreement from time to time. You will be notified of modifications through notifications or posts on https://medical.andonline.com/API-license-agreement. You will be responsible for reviewing and becoming familiar with any such modifications.
17. Miscellaneous.
17.1 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) to a party pursuant to this Agreement must be in writing and shall be delivered by one of the following means. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email in each case, with confirmation of transmission if sent during the party’s normal business hours, and on the next business day if sent after the party’s normal business hours; and (d) on the 7th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
All notices to A&D shall be addressed to:
A&D Engineering, Inc.
4622 Runway Boulevard
Ann Arbor, MI 48108
All notices to You, unless otherwise provided via e-mail, shall be to the address set forth in Your applicable Order Form. Any party may change the address to which notice is to be given by notice given in the manner set forth above.
17.2 Governing Law and Jurisdiction. This agreement is governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Except as otherwise set forth herein, any legal suit, action, or proceeding arising out of or related to this agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
17.3 Arbitration. At our sole discretion, we may require you to submit any disputes arising under this Agreement, including disputes arising from or concerning its interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Michigan law.
17.4 Entire Agreement. This Agreement constitutes the entire agreement between You and A&D with respect to Your access to and use of the API and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to the API.
17.5 Assignment. Neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld. This Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors and permitted assigns. Any purported assignment in violation of the foregoing shall be void.
17.6 Export Regulation. The API may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. You will not, directly or indirectly, export, re-export, or release the API to, or make the API accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the API available outside the US.
17.7 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
7.8 Waiver. No waiver by any Party of any provision of this Agreement will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise provided in this Agreement: (i) no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement, including rights related to unauthorized access or use of the API, will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
