PIKE13 DEVELOPER APPLICATION AND API AGREEMENT

1. DEFINITIONS.

The following initially capitalized terms have the respective meaning set forth below. All other initially capitalized terms have the meanings assigned in this Agreement.

“API” means Pike13’s application programming interface in the form made available by Pike13 to Developer to enable Developer to access the Platform through web or other software services or applications.

“Developer Application” means a software application or service that is owned, operated, and developed by Developer to interact with elements of the Platform through the API.

“Pike13 Content” means any information retrieved from the Platform through use of the API.

“Platform” means Pike13’s website at www.pike13.com, any end user applications and the related systems, software, databases, and services necessary for such end users to access or use such website or applications.

2. LICENSE GRANTS AND RESTRICTIONS.

2.1 License to Developer. Subject to Developer’s compliance with the terms and conditions set forth in this Agreement, including without limitation, Section 2.2 and Section 3, and solely for the Term of this Agreement, Pike13 grants Developer a personal, non-exclusive, limited, non-transferable, revocable, and non-sublicensable license to internally use the API and any Pike13 Content to: (a)enable the Developer Application to interact with the Platform; (b) make limited intermediate copies of the Pike13 Content only as necessary to perform an activity permitted under this Agreement; (c) modify (solely to rearrange or reorganize) the Pike13 Content within the Developer Application; and (d) display Pike13 Content in or in relation to the Developer Application.

2.2 Restrictions. Developer may engage in the activities permitted under Section 2.1 solely in connection with its use of the Platform, or to facilitate use of the Platform by third parties through Developer’s Application, in accordance with this Agreement (“Permitted Use”). Developer shall not: (a) use the API, the Platform, or any Pike13 Content in any way not expressly permitted by this Agreement; (b) use (or facilitate use of) any alternative means such as robots, spyders, scraping, or other technology to access or use the Platform, any Pike13 Content, or any other Pike13 online property; (c) distribute, publish, facilitate, enable, or allow access or linking to the Pike13 Content or the Platform from any location or source other than the Developer Application; (d) provide Pike13 Content to any third parties not expressly authorized by this Agreement; (e) use the API to permit access to, or use of, the Platform or any Pike13 Content in any way not permitted by Pike13’s then-current versions Terms of Use and Privacy Policy, and any other Pike13 terms or policies (“Additional Policies”) related to use of the Platform, API and/or Pike13 Content (all of which are deemed incorporated into this Agreement), or in any way intended to, or that does, reduce revenue to Pike13 from licensing access to the Platform to third parties; (f) use the API, the Platform, or any Pike13 Content in any way to substantially replicate products or services offered by Pike13, including, without limitation, functions or clients on platforms where Pike13 offers its own client or functions, or use or access the API in order to monitor the availability, performance, or functionality of any of the API or Service or for any similar benchmarking purposes; (g) collect personally identifiable information of any Pike13 end user without that end user’s express permission and in compliance with applicable rules and regulations; (h) modify, reverse engineer, decompile, or otherwise alter the API or the Platform (except to the extent authorized by applicable law notwithstanding this limitation), or otherwise attempt to discover the underlying ideas, algorithms, structure or organizational form of the API or the Platform; (i) interfere with, modify, or disable any features, functionality, or security controls of the Platform or the API, or attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the API or the Platform; or (j) commercialize (i.e., sell, rent, or lease), copy, store, or cache any Pike13 Content, other than for the purposes expressly allowed by this Agreement, nor under any circumstances, through a Developer Application or otherwise, repackage or resell the API, Platform or Pike13 Content Data in any manner, except as expressly authorized and permitted in advance by Pike13 in writing. If Pike13 believes, in its sole discretion, that Developer has violated or attempted to violate any term or condition of this Agreement, the license granted to Developer pursuant to Section 2.1 may be temporarily or permanently revoked, with or without notice to Developer.

3. FURTHER LIMITATIONS; WARRANTIES AND REPRESENTATIONS.

Developer hereby agrees, warrants and represents that the Developer Application and Developer’s use of the API, Pike13 Content, and Platform may be for the Permitted Use only and shall not: (a) be false, inaccurate, or misleading; (b) infringe on any third party's copyright, patent, trademark, trade secret, or other property rights or rights of publicity or privacy; (c) violate any law, statute, ordinance, contract, or regulation (including those governing financial services, consumer protection, unfair competition, antidiscrimination, or false advertising); (d) be defamatory, offensive, obscene, libelous, unlawfully threatening, or unlawfully harassing; (e) contain any viruses, trojan horses, worms, time bombs, cancelbots, or other computer programming routines or malicious code that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or other personal information; (f) design or utilize any Developer Application for the purpose of “spamming” any users of the Platform or the Pike13 Services; or (g) create liability for Pike13. If Pike13 establishes API call volume limitations and Developer exceeds such limitations, Pike13 may discontinue Developer’s access or use of the API or Platform. Developer will not knowingly create a software application that may be used to violate Pike13’s then-current Terms of Use, Privacy Policy, or any Additional Policies. Developer’s continued access to the API and the Platform is subject to Developer’s compliance with any security standards that Pike13 may provide from time to time (which, upon such provision, will be deemed incorporated into this Agreement).

4. MODIFICATIONS.

Pike13 may modify, change, update, or enhance the API, permitted API calls, any Pike13 Content, the Platform, or the Permitted Use (“Modifications”) at any time, with or without notice, in Pike13’s sole discretion. Modifications may affect the Developer Application’s ability to access or use the API, Pike13 Content, and the Platform and may require Developer to change the Developer Application, at Developer’s sole cost, to resume such access or use. Without limiting Section 13, Pike13 will not be liable for any costs incurred by Developer, or for lost profits or damages of any kind, related to any Modifications.

5. DEVELOPER APPLICATION; SUPPORT.

Developer acknowledges and agrees that Developer is solely responsible, and that in no event shall Pike13 have any responsibility or liability of any kind, for any Developer Application, including the development, content, operation, or support or maintenance of any Developer Application. In addition, this Agreement does not entitle Developer to any support for the API or Platform. Developer is solely responsible for providing all support and technical assistance to end users of its Developer Applications. Developer acknowledges and agrees that Pike13 has no obligation to provide support or technical assistance to the users of Developer Applications and Developer shall not represent to any such users that Pike13 is available to provide such support. Developer agrees to use commercially reasonable efforts to provide reasonable support to users of its Developer Applications.

6. NO IMPACT TO PIKE13 INTELLECTUAL PROPERTY.

As a condition to the license grant contained herein to the API, Pike13 Content, and Platform, Developer hereby agrees that it does not have any right, license power or authority to take any action, and will not take any action, directly or indirectly, that would except as otherwise set forth herein (a) create, or purport to create, obligations for Pike13 or its affiliates with respect to the API, Pike13 Content, and Platform or any Pike13 software or technology; or (b) grant, or purport to grant, to any third party any rights or immunities under Pike13, its affiliates’ or their suppliers’ intellectual property or proprietary rights in the API, Pike13 Content, and Platform or any Pike13 software or technology.

7. APPLICATION IDS AND VERIFICATION,

Pike13 will provide Developer with identification codes that permit Developer to access the Platform for each Developer Application (“Application IDs”). All requests to the API must reference the Application ID issued to Developer for the particular Developer Application as an approved licensee. All Application IDs are the property of Pike13 and may be immediately revoked or terminated by Pike13 if Developer shares the Developer IDs with any third party, if the Application IDs are compromised by a third party, or if Developer uses the Application IDs to access the API, Pike13 Content, or the Platform in any way not expressly permitted under this Agreement. Developer hereby agrees to provide Pike13, upon request, with access to the Developer Application and other materials related to Developer’s use of the API and Platform as reasonably requested by Pike13, in order to allow Pike13 to verify Developer’s compliance with this Agreement and any policies or guidelines that Pike13 makes available or accessible to Developer.

8. OWNERSHIP; FEEDBACK.

Pike13 owns all right, title, and interest in the API, the Platform, any Pike13 Content, and any other Pike13 services, materials or information provided or made available to Developer under this Agreement. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel or otherwise, a license to any technology or intellectual property of Pike13, or its affiliates or their suppliers other than the license to the API, the Platform, any Pike13 Content, as expressly set forth herein. Nothing in this Agreement grants Developer any rights to use any trademarks or logos of Pike13. All rights not expressly granted in this Agreement are expressly reserved by Pike13 and its suppliers. Developer hereby agrees that Pike13 shall have, and Developer hereby grants to Pike13, a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable and perpetual license to incorporate into the API, Platform, Pike13 Content or otherwise use any suggestions, enhancement requests, recommendations or other feedback Pike13 receives from Developer.

9. NONEXCLUSIVE ARRANGEMENT.

This Agreement is non-exclusive, and nothing in it may be construed to preclude Pike13 from providing to third parties services or access to or use of the API, any Pike13 Content, the Platform, or developing any service, product or technology in connection with any of the foregoing or otherwise.

10. CONFIDENTIALITY.

Developer will: (a) protect Pike13’s Confidential Information (including the API) from unauthorized dissemination with the same degree of care that it uses to protect its own like information (but at least reasonable care); (b) use Pike13’s Confidential Information only to access the Platform and otherwise to perform under this Agreement; and (c) not disclose Pike13’s Confidential Information to any third party without Pike13’s prior written permission in each case. Confidential Information may, however, be disclosed as required by government or judicial order if Developer either gives reasonable notice (to allow Pike13 a reasonable opportunity to seek a protective order or equivalent) or obtains written assurance from the applicable government or judicial entity that it will afford the Confidential Information the highest level of protection under applicable law. On termination or expiration of this Agreement, Developer will return or destroy all Confidential Information received from Pike13 under this Agreement and in Developer’s possession or control, within 30 days. As used herein, “Confidential Information” means nonpublic information that Pike13 designates as confidential, or that, under the circumstances of disclosure, should be treated as confidential. Confidential Information does not include any information that Developer developed independently; or that is or subsequently becomes publicly available or is received from another source, in both cases other than by a breach of an obligation owed to Pike13.

11. NO WARRANTIES; DISCLAIMERS.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY USE OF THE API, PIKE13 CONTENT, THE PLATFORM, AND ANY PIKE13 SERVICE OR PRODUCT OR INFORMATION (COLLECTIVELY, “PIKE13 SERVICES”) IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PIKE13 SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PIKE13 EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR ANYTHING PROVIDED IN RELATION TO THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, PIKE13 MAKES NO WARRANTY THAT THE PIKE13 SERVICES WILL (A) MEET DEVELOPER’S REQUIREMENTS; (B) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR HAVE KNOWN OR DISCOVERED ERRORS CORRECTED; (C) PROVIDE RESULTS THAT ARE ACCURATE OR RELIABLE; OR (D) MEET DEVELOPER’S EXPECTATIONS OR REQUIREMENTS. ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE PIKE13 SERVICES IS ACQUIRED AT DEVELOPER’S OWN DISCRETION AND RISK AND DEVELOPER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY DEVELOPER FROM PIKE13 OR ITS AGENTS AT ANY TIME CREATES ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.

12. INDEMNIFICATION.

Developer shall defend, indemnify, and hold Pike13, its officers, directors, shareholders, employees, subsidiaries, affiliates, agents, and suppliers harmless from all amounts and expenses (including judgments, settlements, attorneys’ fees, liabilities, damages, and costs) related to or arising from any Claim. In connection with a Claim, Pike13 will: (a) promptly notify Developer of any Claim; (b) permit Developer (through mutually-agreed counsel) to answer and defend; and (c) provide assistance, at Developer’s expense and request, as reasonably needed to defend such Claim. Pike13 may, at its expense and with separate counsel, monitor or participate in such defense. Developer may not settle or publicize any such Claim without Pike13’s prior written consent. As used herein, “Claim” means any third-party allegation that, as alleged, (i) arises from or relates to a breach of any provision of this Agreement (or the documents it incorporates by reference) by Developer or that otherwise arises from Developer’s use of the API, Platform, Pike13 Content, or any Pike13 Services; (ii) arises from or relates to any Developer Application; (iii) arises from or relates to the negligent or willful acts or omissions of Developer; or (iv) arises from or relates to Developer’s violation of any law, rule, or regulation or the rights of a third party.

13. DAMAGE DISCLAIMERS;

LIABILITY LIMITATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PIKE13, OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS OR SUPPLIERS BE LIABLE TO DEVELOPER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR PENALTIES (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS OR INABILITY TO ACCESS THE PIKE13 SERVICES) ARISING HEREUNDER OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THEORY AND EVEN IF PIKE13 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL, CUMULATIVE LIABILITY (IF ANY) OF PIKE13, AND ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS OR SUPPLIERS EXCEED DIRECT DAMAGES INCURRED IN REASONABLE RELIANCE UPON PIKE13 IN AN AMOUNT NOT TO EXCEED US FIVE DOLLARS. THE PARTIES ACKNOWLEDGE THAT OTHER PARTS OF THIS AGREEMENT RELY UPON THE INCLUSION OF THIS SECTION 13.

14. TERM AND TERMINATION; SURVIVAL.

The term of this Agreement (“Term”) begins on earlier of (a) acceptance of this Agreement or (b) any use by Developer of the API, Platform, and/or any Pike13 Content, and shall continue until terminated as set forth in this Section 14. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Developer violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination or expiration of this Agreement for any reason, Developer shall cease using, and either return to Pike13, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Developer’s possession, and shall certify to Pike13 that such actions have occurred. Neither party will be liable to the other for damages resulting solely from terminating this Agreement according to its terms. Sections 1, 2.2, 3, 6, 8, 9, 10, 11, 12, 13, 14, 15, and 16 and any definitions in other sections will survive termination or expiration of this Agreement.

15. ASSIGNMENT.

Developer may not license, sublicense, assign, delegate or otherwise transfer its rights or obligations under this Agreement, in whole or in part, whether voluntarily, involuntarily, by operation of law, merger, or otherwise (and any merger, sale of assets or similar transaction shall be deemed an assignment hereunder), without first obtaining the written consent of Pike13. Any attempted assignment in violation of the foregoing shall be voidable at the election of Pike13. Pike13 may assign its rights and obligations under this Agreement if the assignee assumes the responsibilities for performance under this Agreement.

16. MISCELLANEOUS.

16.1 Venue; Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without regard to its conflict of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement, the construction and enforcement of this Agreement, or any disputes arising out of or relating to this Agreement or the subject matters of this Agreement. Any legal proceeding arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction and venue of the state or federal courts sitting in King County, Seattle, Washington. Developer consents to such courts and waives all defenses of lack of personal jurisdiction, improper venue, and forum non-conveniens relating to this Agreement. This choice of jurisdiction and venue does not prevent Pike13 from seeking injunctive or provisional relief in other courts with respect to protection of its intellectual property rights.

16.2 Independent Contractors. The parties are independent contractors. There shall be no employer-employee relationship between Pike13 and Developer, and between Developer and Pike13. Nothing contained in this Agreement shall be construed to constitute the parties to be partners or joint-venturers with or agents for one another. Neither party shall have the authority to, nor shall either, obligated or bind the other in any manner whatsoever.

16.3 Attorneys’ Fees. In any action to enforce any right or remedy arising under this Agreement or to interpret any provision of this Agreement, the prevailing Party will be entitled to recover its costs, including attorneys’ fees, and including cost and fees incurred on appeal or in a bankruptcy or similar action.

16.4 Agreement Revisions. Pike13 reserves the right to modify the terms and conditions of this Agreement or provide additional usage requirements or limitations in its sole discretion at any time by posting a revised version hereof on its webpage or by otherwise making such revised terms available for Developer’s review. Any such modifications will supersede all prior versions after the revised version has been posted or otherwise made available as described above. Developer hereby acknowledges and agrees that continued use of the API, Platform and/or Pike13 Content constitutes Developer’s agreement to any such revisions.

16.5 Headings. All captions and headings in this Agreement are inserted for convenience only, and shall not affect the meaning or construction of any provision in this Agreement.

16.6 No Waivers. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.

16.7 Notices. All notices to be provided by Pike13 to Developer under this Agreement may be delivered (i) in writing by US mail to the contact mailing address provided by Developer to Pike13; or (ii) by electronic mail to the electronic mail address provided by Developer to Pike13. Developer must give notice to Pike13 in writing and delivered by US Mail to the following address: Pike13 Inc., ATTN: Legal Notices API Agreement, 1221 E Pike #200, Seattle, WA, USA 98122. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail as permitted above.

16.8 No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the Parties. Except as expressly provided in this Agreement, in no event will any third party have any rights in relation to this Agreement or any right to enforce the terms hereof.

16.9 Severability. If any of the provisions of this Agreement are held to be invalid under any applicable statute or rule of law, they are, to that extent, deemed omitted, and the validity of the remaining provisions shall not be affected thereby. If any provision is held invalid or unenforceable with respect to particular circumstances, it shall nevertheless remain in full force and effect in all other circumstances.

16.10 Injunctive Relief. Developer confirms that damages at law will be an inadequate remedy for Developer’s breach or threatened breach of this Agreement and agrees that Pike13’s rights and obligations hereunder shall be enforceable by specific performance, injunction, or other equitable remedy, as well as at law or otherwise.

16.11 Entire Agreement. The parties agree that this Agreement, including the then-current versions of Pike13 Terms of Use, Privacy Policy and Additional Policies, are the complete and exclusive statement regarding the subject matter and supersede all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement. Additional or conflicting terms contained in any purchase order, standardized form or correspondence provided by Developer are expressly excluded and unenforceable under this Agreement unless such terms and conditions are contained in a non-electronic, written amendment to this Agreement duly executed by both Parties.