1. Acceptance.
This Developer Agreement (this "Agreement") is an agreement between you and IQ Engines, Inc. ("IQ Engines," "we," or "our"). This Agreement governs your use of the application programming interfaces to the IQ Engines Image Labeling Service and related API keys (collectively, such interfaces and keys the "IQ Engines API"), and software development kits, sample software code, and other related technology, documentation, and materials we provide to you (collectively, the IQ Engines API and such kits, code, technology, documentation, and materials the "Development Properties"). By accessing or using the Development Properties, you agree to the terms of this Agreement. If you do not agree, you may not use the Development Properties. This Agreement is incorporated into the Terms of Service that govern the use of our websites and to which you also agree. This Agreement hereby incorporates any additional terms related to the Development Properties found at our websites or when you access individual Development Properties. For example, additional payment terms, service terms, or software license terms. To the extent that there is a conflict between this Agreement and such additional terms, such additional terms will prevail.
2. Termination.
We may immediately terminate your access and right to continue using the Development Properties at any time for any reason or for no reason. Your right to use the Development Properties terminates automatically if (a) you violate any provision of this Agreement, (b) we publicly post a written notice of termination on our website, (c) we send you a written notice of termination, or (d) we disable your access to the IQ Engines API. In the event of termination, you are responsible for payment of any amounts due. We may change, suspend, or discontinue any aspect of the IQ Engines Image Labeling Service or IQ Engines API at any time. We may also impose limits on certain features and services or restrict your access to all or parts of the IQ Engines Image Labeling Service and IQ Engines API without notice or liability.
3. Update of Terms.
We may amend this Agreement from time to time at our sole and absolute discretion. Such amendment shall be effective 7 days after posting to www.iqengines.com/tou/. Your continued use of any Development Property after such posting will constitute your acceptance of the new terms.
4. Licenses.
4.1 API. Subject to the terms of this Agreement, and the payment of any required fees, we grant you the non-exclusive, non-sub-licensable, non-assignable, and non-transferrable right to use and access the IQ Engines API and documentation solely in order to create and operate a mobile device application, website functionality, or other functionality that interfaces with the IQ Engines Image Labeling Service (an "Application").
4.2. SDK. You may use the contents of the IQ Engines Image Labeling Service Software Development Kit only for purposes of developing an Application. You may modify the sample code portions of the IQ Engines Image Labeling Service Software Development Kit and redistribute such modified or unmodified sample code in object code format only as a part of your Application. You may redistribute any database portions of such SDK only in unmodified form and only as a part of your Application. You may not redistribute any other portion of such SDK.
4.3 Trademarks.
(a) Subject to the terms and conditions of this Agreement, as long as you are permitted to access the IQ Engines API under this Agreement, we hereby grant to you a fully paid, royalty free, non-transferable, non-sub-licenseable, non-exclusive license to display the trade names, trademarks, service marks, logos, and domain names of IQ Engines (each, a "IQE Mark") for the purpose of truthfully promoting or advertising that you use the IQ Engines API or are otherwise a customer of IQ Engines. Each use or display of IQE Marks will be in accordance with the policies issued by IQ Engines and will be accompanied by the appropriate symbol ("TM", "©", "SM" or "®") and a legend specifying our ownership of such IQE Mark. We may determine in our sole discretion whether the IQE Marks may be used in connection with your Application. Furthermore, we may modify any IQE Marks provided to you at any time, and, upon notice from us, you will use only the modified IQE Marks. Other than as specified in this Agreement, you may not use any IQE Mark unless you obtain our prior written consent. If you use any of the IQE Marks, you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of IQ Engines.
(b) You hereby grant IQ Engines a fully paid, royalty free, non-sub-licenseable, non-exclusive, perpetual license to display your trade names, trademarks, service marks, logos, domain names and the like for the purpose of truthfully promoting or advertising that you use or used the IQ Engines API.
5. API Modification.
We may from time to time and in our sole discretion change, deprecate, and republish the IQ Engines API for any feature. It is your responsibility to ensure that calls or requests your Application makes are compatible with the then-current IQ Engines API. We may inform you of any changes so you can adjust your Application, but we are under no obligation to do so.
6. Obligations and Restrictions.
6.1 Obligations.
(a) You will provide registration information about yourself and your Application for each API key that your request. You will provide us with complete and truthful registration information, including a valid and non-obfuscated email address where you will receive email from us during the period that you use the Development Properties. You may register for an API key at the webpage found here /accounts/register/.
(b) You will prominently disclose to users of and visitors to your Application (collectively, your "Application Users") a privacy policy that describes how you collect, use, store, and disclose data collected through the Application.
(c) When accessing the IQ Engines Image Labeling Service you will comply with this Agreement and the IQ Engines Terms of Service found at /tos/.
(d) You will include a prominent hyperlink within your Application or related license agreement that leads to the IQ Engines Terms of Service found at /tos/. Each of your Application Users will accept these terms under which they interact with the IQ Engines Image Labeling Service.
(e) Your Application will include a license agreement to be accepted by each Application User that: (i) effectively disclaims the warranties and liabilities of IQ Engine (as a supplier) to at least the extent such warranties and liabilities are disclaimed in this Agreement, and (ii) requires that such user agree not to reverse engineer, modify, or attempt to discover the source code of any software provided by us other than in human readable form.
(f) You will obtain all rights, licenses, consents, permissions, waivers, and releases necessary for you to use and distribute your Application.
6.2. Restrictions.
(a) Without obtaining prior written authorization from us, you will not establish more than one account at our website.
(b) Your Application will not rely upon more than one API key in order to avoid paying for queries.
(c) Your Application will not facilitate the creation of accounts at our website by Application Users.
(d) Your use of the Development Properties and your Application will not: (1) violate, misappropriate, or infringe any patent, copyright, trade secret, or any other intellectual property right; (2) defame or invade the privacy or publicity rights, or other similar rights, of any party; or (3) be designed for use in any illegal activity or promotion of illegal activities, including, without limitation, any libelous or defamatory or otherwise malicious, illegal, or harmful activity, or be discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age, or be otherwise similarly offensive.
(e) You will not: (1) use any Development Property for any application that replicates or attempts to replace the essential user experience of IQ Engines products and services; (2) conceal or obfuscate the identity of your Application when requesting access to the IQ Engines API; (3) use an unreasonable amount of bandwidth through automating image queries, and we reserve the right to rate-limit the allowed queries per unit time to provide an appropriate quality of service; (4) use any Development Property for any application that constitutes, promotes, or is used in connection with spyware, adware, other malicious programs or code; (5) use any Development Property in any manner or for any purpose that violates any law or regulation or any right of any person or entity, including but not limited to intellectual property rights and rights of privacy; (6) use any Development Property in a manner that adversely impacts the stability of our servers or adversely impacts the behavior of other applications using the IQ Engines API; (7) collect or harvest any personally identifiable information, including account names, from the IQ Engines API; (8) access any content on or through the IQ Engines API through any technology or means other than those provided or authorized by us; (9) bypass the measures we may use to prevent or restrict access to the IQ Engines API, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the IQ Engines API or the content therein; (10) copy, publish, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the IQ Engines API or any other Development Property for any purpose; (11) allow any unauthorized third party to access the IQ Engines API for any purpose; (12) modify or replace the image labels from the IQ Engines API search results in a manner that reduces the accuracy of the label description; or (13) use the Development Properties other than as expressly permitted in this Agreement.
(f) You will not permit or encourage any third party to do any of the foregoing.
7. Ownership.
7.1 General. IQ Engines and its suppliers own all right, title, and interest in and to the Development Properties. The Development Properties may be protected by patent rights, copyrights, trademark rights, service mark rights, international treaties, or other proprietary rights and laws of the U.S. or other countries. All rights not expressly granted to you are reserved by IQ Engines and its suppliers.
7.2 Images. As set forth in the IQ Engines Terms of Service found at http://www.iqengines.com/tos/, at the time of upload of each image to the IQ Engines Image Labeling Service, the uploading individual or entity transfers ownership of all of his or its copyrights in such image to IQ Engines. As set forth in such terms, training content is not subject to such transfer of ownership.
7.3 Labels. All labels resulting from the upload of images to the IQ Engines Image Labeling Service are owned solely by IQ Engines.
8. Support.
Unless otherwise separately agreed in writing, IQ Engines has no obligation to provide you with updates, modifications, or other support for the Development Properties. If we choose to provide you with support, we may suspend or discontinue such support at any time in our sole discretion.
9. Fees and payments.
9.1 Per Query Charge. We may charge you fees based upon queries made to the IQ Image Labeling Service, including queries through the IQ Engines API and queries to databases that are embedded within your Application. Fees are determined on a query-completed basis. Our current pricing schedule is available at: /pricing/. The schedule does not constitute an offer. We reserve the right to adjust pricing offered to you in our sole discretion.
9. 2 Your Facilities. You are solely responsible for all operational costs, duties, and fees that are incurred in order for your Application to use IQ Engines API, including, but not limited to, storage fees, telecommunication charges, Internet service providers, your internal or external data processing infrastructure, and wireless access fees.
9.3 Taxes. You are responsible for payment of all export, withholding, federal, state, and local taxes, duties, or excises imposed on our provision of the Development Properties other than taxes based on our income.
9.4 Prepaid Accounts.
(a) Prepaid Account. We may allow or require that you pre-pay for queries you or your Application make to the IQ Engines API by establishing a prepayment account ("Prepaid Account"). Amounts in your Prepaid Account cannot be transferred to another Prepaid Account or to other parties.
(b) Authorizations for PayPal Account. We may rely upon PayPal services to manage your Prepaid Account. If you authorize payment through PayPal, you hereby authorize IQ Engines Inc. and its affiliates, or agents acting on their behalf, to debit your PayPal account for your prepaid queries. In the event there is an error in the processing of any payment transaction as described above, you hereby authorize us to debit or credit your PayPal account, to correct such error, provided that any such correction is made in accordance with applicable laws, and to make any inquiries we consider necessary to correct the error, which may include verifying the information you provide against third party databases. Your authorizations will remain in full force and effect until we receive written notification from you of any termination. Any authorization termination will become effective as soon as we have had a reasonable amount of time to act on it, but in any event not later than 60 days after written notice of termination is received by us.
(c) Refunds.
(1) Termination by You. You may at any time elect to discontinue use of the IQ Engines API and cancel your Prepaid Account by following the instructions on our website. In the event that you terminate your Prepaid Account, and you cease use of the IQ Engines API, we will disburse any Prepaid Account balance in excess of $25 to your PayPal account.
(2) Termination by IQ Engines. Consistent with this Agreement, IQ Engines may, in its sole discretion and with or without cause, discontinue your license and access to the IQ Engines API and your ability to submit queries to the IQ Engines Image Labeling Service. In the event that we terminate such license or access without cause (e.g., for your breach of this Agreement), and you cease all use of the IQ Engines API, we will disburse any Prepaid Account balance in excess of $25 to your PayPal account.
(3) Termination for Non-Use. We may terminate your license and access to the IQ Engines API and your ability to submit queries to the IQ Engines Image Labeling Service if your account is inactive for 90 days or longer. In the event your Account is terminated for inactivity, we will disburse your remaining Prepaid Account balance in excess of $25 to your PayPal account.
10. Disclaimer of any warranty.
SOME OR ALL OF THE IQ ENGINES API AND OTHER DEVELOPMENT PROPERTIES MAY BE EXPERIMENTAL AND NOT TESTED IN ANY MANNER. IQ ENGINES DOES NOT REPRESENT OR WARRANT THAT IQ ENGINES API OR ANY OTHER DEVELOPMENT PROPERTY IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE DEVELOPMENT PROPERTIES ARE PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND, AND IQ ENGINES EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT. YOUR USE OF THE DEVELOMPENT PROPERTIES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF ANY DEVELOPMENT PROPERTY INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA. IN PARTICULAR, You acknowledge that the time for THE IQ Engines image labeling SERVICE to produce image labels can range from a few seconds to many hours. The returned labels can range from general to highly descriptive. The returned labels may occasionally be incomplete, inaccurate, or non-descriptive. Do not use the IQ Engines API in applications THAT REQUIRE precise processing time or 100% labeling accuracy.
11. Limitations of liability.
IQ ENGINES SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE IQ ENGINES API OR OTHER DEVELOPMENT PROPERTY, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT IQ ENGINES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF IQ ENGINES TO YOU FOR ANY REASON ARISING OUT OF ITS PROVISION OF THE DEVELOPMENT PROPERTIES SHALL BE LIMITED TO THE AMOUNT OF PREPAID FEES PAID TO US, IF ANY.
12. Exclusions and limitations.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF MAY NOT APPLY TO YOU.
13. Release and waiver.
To the maximum extent permitted by applicable law, you hereby release and waive all claims against IQ Engines, and its subsidiaries, affiliates, officers, agents, licensors, co-branders or other partners, and employees from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising from or in any way related to your use of Development Properties.
If you are a California resident, you waive your rights under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits that you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.
14. Indemnity.
To the maximum extent permitted by applicable law, you agree to defend, indemnify, and hold harmless IQ Engines and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses arising from: (a) your use of and access to the Development Properties, including any data or content transmitted or received by you; (b) your violation of any provision of this Agreement; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule, or regulation of the United States or any other country; (e) any claim or damages that arises as a result of any content that you or your Application Users submit through the IQ Engines API; and (f) any other party's access and use of the IQ Engines API with your unique username, password, API key, or other security credentials.
15. General terms.
15.1 Assignment. Your rights and obligations under this Agreement may not be transferred or assigned by you. We may assign or transfer our rights and obligations under this Agreement without restriction.
15.2 No Agency. You and IQ Engines shall be and act independent of each other and not as partner, joint venturer, agent, employee, or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of IQ Engines, express or implied, and you shall not attempt to bind IQ Engines to any contract.
15.3 Invalidity of Specific Terms. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and the other provisions of such documents remain in full force and effect.
15.4 Location of Lawsuit and Choice of Law. This Agreement and the relationship between you and IQ Engines shall be governed by the laws of the State of California without regard to its conflict of law provisions. Notwithstanding any arbitration provision concerning consumer disputes included in our website terms of service, you and IQ Engines agree that the courts located within the county of San Francisco, California will have exclusive jurisdiction over any dispute between you and IQ Engines. Notwithstanding the foregoing, either party may seek emergency injunctive relief in any competent court.
15.5 No Waiver of Rights by IQ Engines. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
15.6 Survival Clause. Upon termination of your access or license to one or more of the Development Properties, you will either return to IQ Engines or uninstall and destroy such property(ies) and the related documentation together with any copies thereof.
15.7 Integration. This Agreement, including all addenda, amendments, and terms incorporated by reference, constitutes the entire agreement between IQ Engines and you with respect to the subject matter hereof.
Last Updated: January 16, 2012
ILSDeveloperAgreement_20120116