Duo Digital Prints, Inc. Application Program Interface End User License Agreement
YOUR USE OF THE DUO DIGITAL API MAY INCLUDE THE COLLECTION, STORAGE, MAINTENANCE, TRANSMISSION, OR OTHER USE OF DATA. ALL DATA, WHETHER IN THE AGGREGATE, OR INDIVIDUALLY, OF ANY KIND, TRANSMITTED THROUGH, COLLECTED THROUGH, STORED WITHIN, UPLOADED TO OR THROUGH, OR USED IN CONNECTION WITH THE DUO DIGITAL API, IN ANY WAY, IS REFERRED TO AS THE “DATA”. YOU OWN ALL DATA THAT YOU TRANSMIT OR OTHERWISE USE THROUGH THE DUO DIGITAL API, HOWEVER, YOU GRANT DUO DIGITAL AND ITS SUCCESSORS, AFFILIATES, LICENSEES, CUSTOMERS, ASSIGNS, AND DESIGNEES, A WORLDWIDE, ROYALTY FREE, PERPETUAL, IRREVOCABLE, TRANSFERRABLE, SUBLICENSABLE RIGHT AND LICENSE TO USE THE DATA, DURING SUCH TIME AS YOU USE THE DUO DIGITAL API, AND AFTER. BY AGREEING TO THESE TERMS, AND USING THE DUO DIGITAL API, YOU ACKNOWLEDGE AND AGREE THAT YOU CONSENT TO THE DATA LICENSE DESCRIBED IN THIS SECTION. IF YOU HAVE ANY QUESTIONS ABOUT THE DATA LICENSE DESCRIBED IN THIS SECTION, PLEASE CONTACT USE AT firstname.lastname@example.org. THE LICENSE GRANTED IN THIS SECTION IS IRREVOCABLE, SO PLEASE MAKE SURE YOU UNDERSTAND THE LICENSE GRANTED TO DUO DIGITAL AND THE OTHERS IDENTIFIED IN THIS PARAGRAPH BEFORE PROCEEDING TO USE THE DUO DIGITAL API.
1. The following defined terms are used in this Agreement:
(a) “TOCAF” means DUO DIGITAL’s true digital order capture and fulfilment software API.
(b) “TDAS” means DUO DIGITAL’s true designer application software API.
(c) “DUO DIGITAL API” shall mean any materials, including but not limited to, interface definitions, documentation, and sample code regarding programming interfaces to one or more DUO DIGITAL products, provided by us to you, including but not limited to TOCAF and/or TDAS.
(d) “DUO DIGITAL Software” shall mean one or more DUO DIGITAL products, including the DUO DIGITAL API.
(e) “Developer Software” shall mean software or code created by you that communicates with the DUO DIGITAL Software.
2. Subject to the terms and conditions of this Agreement, you may download and make a reasonable number of copies of the DUO DIGITAL API solely for your personal use to create Developer Software, and DUO DIGITAL grants you a limited, non-exclusive, revocable, non-transferable, royalty free license to, for your personal use, install, use and display the DUO DIGITAL API only to develop Developer Software, subject to the terms of this Agreement.
3. In exchange for the rights granted herein, you will make the payments set forth on Exhibit A (“Fees”), attached hereto and incorporated by this reference. If you fail to make a payment, the license granted herein will terminate and you will no longer have access to the DUO DIGITAL API.
4. When an order is placed using the DUO DIGITAL Software, it is your responsibility to confirm the order, including delivery information and creditworthiness of each end consumer. Once an order is electronically delivered to us, we will manufacture and deliver the products to the end consumer. Once an order is electronically delivered to us, it cannot be cancelled or modified. Your payment obligations for the Fee accrue the moment an order is electronically delivered to us, and you will be responsible for payment once that order is electronically delivered to us.
5. We do not have any responsibility for checking or confirming any details of any order placed through the DUO DIGITAL Software, and we will not confirm any details. If an end consumer does not pay or seeks a refund, you still have an obligation to pay us the Fee. If an order cannot be delivered to an end consumer because there was a mistake in the address, you still have an obligation to pay us the Fee. The Fee is not cancellable or refundable in any way. DUO DIGITAL relies on the information you provide, and disclaims all liability for any errors or omissions in the order information.
6. The rights granted herein do not include, and specifically exclude, the right to commercialize any Developer Software. In order to commercialize the Developer Software, you must be granted a further license from DUO DIGITAL, on terms as set by DUO DIGITAL in its sole discretion. You may not offer for sale, sell, monetize, publish, share, or in any way receive consideration for, the Developer Software or the DUO DIGITAL API. For clarity, you can use the Developer Software to sell products through the Developer Software. By way of example, you can sell SKUs of clothing through the Developer Software without violating this Section, but you cannot sell the Developer Software itself.
7. The DUO DIGITAL API incorporates certain open source software. The open source software used is identified on Exhibit B, attached hereto and incorporated by this reference. Your use of the DUO DIGITAL API is governed by the licenses set forth on Exhibit B. Please review Exhibit B carefully.
8. You may not and will not permit others to:
(a) use the DUO DIGITAL API in any way other than to design or develop the Developer Software;
(b) make any more copies of the DUO DIGITAL API than is reasonably necessary for the purposes allowed here;
(c) modify, change, alter, create derivative works of, reverse engineer, reverse compile, or disassemble the DUO DIGITAL API, regardless of location, i.e. outside of the U.S.;
(d) distribute, sell, lease, rent, lend, or sublicense any part of the DUO DIGITAL API to any third party except as designated herein and as except as a part of the Developer Software;
(e) use the DUO DIGITAL API to design or develop software to upload or otherwise transmit any material containing software viruses or other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any software or hardware;
(f) contest, object to, or otherwise challenge DUO DIGITAL’s proprietary interest in and ownership of the DUO DIGITAL API.
9. Except as expressly granted herein, no other license under any proprietary or intellectual property right, including but not limited to patent, copyright, trade secret, trademark or otherwise is granted to or conferred to you by this Agreement. All other rights other than those specifically granted herein are reserved by DUO DIGITAL.
10. You may not represent that the Developer Software is certified or otherwise endorsed by DUO DIGITAL. You may not use the DUO DIGITAL trademark, or any other trademarks or service marks or copyrights of DUO DIGITAL in connection with the Developer Software.
11. You will not receive any support or subscription services for the DUO DIGITAL API from DUO DIGITAL, or any other services from DUO DIGITAL in connection with the DUO DIGITAL API.
12. Any permitted distribution of the Developer Software must be subject to an end user license agreement that includes, at a minimum, the following:
(a) a prohibition on the end user modifying, reproducing, de-compiling, reverse engineering or translating the DUO DIGITAL API;
(b) a prohibition on the end user distributing or transferring the DUO DIGITAL API other than as part of the Developer Software;
(c) a disclaimer of any and all warranties, representations, and obligations related to or arising from DUO DIGITAL and the DUO DIGITAL API;
(d) a disclaimer, as permitted by law, of DUO DIGITAL’s and its affiliated companies’ liability for all damages, direct or indirect, incidental or consequential, that may arise from the DUO DIGITAL API, the DUO DIGITAL Software, and the Developer Software; and
(e) a requirement that the end user not export the DUO DIGITAL API, directly or indirectly, in violation of any U.S. laws.
13. The DUO DIGITAL API is owned by DUO DIGITAL, or its licensors, and is protected by United States copyright laws, international treaty provisions, and other applicable laws. With regard to any copies made, you agree to reproduce any copyright notices and other proprietary legends included within the original. You acknowledge and agree that all right, title and interest in and to the DUO DIGITAL API, and any modifications, improvements, derivatives, suggestions, changes, updates, and any other versions thereof, are owned by DUO DIGITAL and/or its licensors. You acknowledge and agree that the DUO DIGITAL API is proprietary, protectable, and valuable, and unauthorized use will result in irreparable harm to DUO DIGITAL and its licensors, for which monetary damages would be inadequate, and for which DUO DIGITAL and its licensors would be entitled to immediate injunctive relief.
14. The DUO DIGITAL API IS PROVIDED “AS IS” AND DUO DIGITAL AND ITS LICENSORS MAKE, AND YOU RECEIVE, NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. DUO DIGITAL SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. DUO DIGITAL DOES NOT WARRANT THAT THE OPERATION OF THE DUO DIGITAL SOFTWARE OR DUO DIGITAL API WILL BE UNINTERRUPTED OR ERROR FREE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. DUO DIGITAL MAKES NO WARRANTY WITH RESPECT TO THE CORRECTNESS, ACCURACY, OR RELIABILITY OF THE SOFTWARE AND DOCUMENTATION.
Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.
15. All technical and business information disclosed by DUO DIGITAL to you under this Agreement, including but not limited to source code, documentation, technical assistance and any confidential information pertaining to DUO DIGITAL’s business or products, are to be considered “Confidential Information.” You will not disclose any portion of Confidential Information to any third party and will protect all Confidential Information with the same degree of care as you use to protect your own information of a confidential or proprietary nature, but always with at least a reasonable degree of care. This obligation of confidentiality will survive termination and/or expiration of this Agreement for any reason.
16. You acknowledge and agree that the DUO DIGITAL API contains proprietary and confidential information that is protected by applicable copyright, trademark and other intellectual property laws, including without limitation, the software programming and html and other code contained in the DUO DIGITAL API and other content available through the DUO DIGITAL API. The trademarks, service marks and logos used and displayed on this DUO DIGITAL API are registered and unregistered trademarks of DUO DIGITAL and others. Nothing in this DUO DIGITAL API should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed in the DUO DIGITAL API, without the written permission of the trademark owner. DUO DIGITAL and its licensors reserve the right to enforce its and their intellectual property rights to the fullest extent of the law. All images on the DUO DIGITAL API are legally protected and are not to be used, reproduced, modified or distributed without written consent of DUO DIGITAL or its licensors. You may not and will not permit others to contest, object to, or otherwise challenge our proprietary interest in and ownership of the DUO DIGITAL API and the Proprietary Information.
17. You and we acknowledge that, in the event of any third party claim that your possession and use of the DUO DIGITAL API infringes that third party’s intellectual property rights, DUO DIGITAL, not the Platform, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
18. As between you and us, the DUO DIGITAL API, the content and information therein, and the look and feel of the DUO DIGITAL API, and all improvements, additions, derivatives and other modifications thereto, and any information pertaining to the foregoing, are the exclusive property of DUO DIGITAL and/or its licensors, and shall be considered and treated by you as the proprietary information of DUO DIGITAL (“DUO DIGITAL Proprietary Information”). You acknowledge and agree that DUO DIGITAL is the owner of the DUO DIGITAL Proprietary Information and you agree that you have no right, title, or interest in any of the DUO DIGITAL Proprietary Information except the right to use the DUO DIGITAL API under and in compliance with the license granted here. You agree not to, directly or indirectly, disclose, sell or otherwise transfer or exploit the DUO DIGITAL Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use the DUO DIGITAL Proprietary Information, or any portion thereof, without the prior written consent of DUO DIGITAL, which may be withheld in DUO DIGITAL’s sole discretion. You further agree not to challenge or assist with or participate in any challenge, directly or indirectly, of our ownership of the DUO DIGITAL Proprietary Information or any right, title or interest therein or any portion thereof.
19. You acknowledge and agree that DUO DIGITAL is the owner of or has rights to its trademarks and such other names, marks, and logos and other intellectual property DUO DIGITAL used, uses or may in the future use in or related to its business, products or services, including, without limitation, all improvements, additions, derivatives and other modifications thereof (“DUO DIGITAL Marks”). You agree that you have no right, title, or interest in any of the DUO DIGITAL Marks. You further agree not to challenge or assist with or participate in any challenge, directly or indirectly, of DUO DIGITAL’s ownership of or right to the DUO DIGITAL Marks and the Proprietary Information or any right, title or interest therein or any portion thereof.
20. You agree not to remove, obscure, or alter any copyright, trademark, or other proprietary rights notice affixed to, contained within, or accessed in conjunction with or through the DUO DIGITAL API. You further agree not to modify, adapt, translate, prepare derivative works from, transmit, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any portion of the Mobile App. Without limiting the generality of the foregoing, in those jurisdictions where law grants you rights to translate, decompile, reverse engineer, or disassemble the DUO DIGITAL API, that you can’t waive, and to the extent required by law, you may exercise such rights to translate, decompile, reverse engineer, or disassemble to the extent necessary to achieve interoperability of the DUO DIGITAL API with an independently created program, but solely in the event that the information necessary to achieve interoperability of the DUO DIGITAL API with an independently created program has not been made available to you by DUO DIGITAL within a reasonable time upon your written request. Such decompilation shall be restricted to the parts of the DUO DIGITAL API that is necessary to achieve interoperability.
21. Without limiting the generality of the foregoing, you acknowledge that DUO DIGITAL is the owner of or has the rights to all information you access from or in the DUO DIGITAL API (“Proprietary Information”). You agree that you have no right, title, or interest in any of the Proprietary Information except under and in compliance with this Agreement. You agree not to, directly or indirectly, disclose, sell or otherwise transfer or exploit the Proprietary Information, or any portion thereof, to any other person or entity or allow any other person or entity to use the Proprietary Information, or any portion thereof, without the prior written consent of DUO DIGITAL, which may be withheld in DUO DIGITAL’s sole discretion.
22. THE TOTAL LIABILITY OF DUO DIGITAL AND ITS LICENSORS UNDER THIS AGREEMENT FOR DAMAGES WILL NOT EXCEED $100 IN THE AGGREGATE. IN NO EVENT WILL DUO DIGITAL OR ITS LICENSORS BE LIABLE IN ANY WAY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION, LOST BUSINESS PROFITS, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT, REGARDLESS OF WHETHER DUO DIGITAL OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions do not permit limitations of liability for incidental or consequential damages, so the above exclusions may not apply to you.
23. Your right to use the DUO DIGITAL API will begin when you download any DUO DIGITAL Software, which constitutes acceptance of the terms and conditions herein. The license is effective until otherwise terminated. You may terminate it at any time by destroying the DUO DIGITAL API and all portions thereof, together with all copies in any form. If you fail to comply with any material term or condition of this Agreement and do not cure the noncompliance within 30 days of receipt of written notice of noncompliance from DUO DIGITAL, we may terminate your rights under this Agreement, at which time you will certify to DUO DIGITAL in writing that the original and all copies, in whole or in part, of the DUO DIGITAL API have been destroyed.
24. At termination of this Agreement for any reason whatsoever all licenses granted by DUO DIGITAL hereunder shall immediately terminate and you shall immediately cease and desist from all access to and use of the DUO DIGITAL API. However, the Data license described herein shall survive termination of this Agreement.
25. This Agreement will be governed by the laws of the United States of America to the extent that they apply and otherwise by the laws of the State of California notwithstanding the application of any conflicts of law rules. Exclusive venue over all disputes arising under or relating to this Agreement shall be in the federal or state courts of Los Angeles, California.
26. You agree and certify that no portion of the DUO DIGITAL API nor any other technical data received from DUO DIGITAL will be exported outside the United States except as authorized and as permitted by DUO DIGITAL and the laws and regulations of the United States.
27. To the full extent permitted by law, this Agreement shall be governed by and construed in accordance with the laws of the State of California, United States of America, excluding (1) its conflict of law principles; (2) the United Nations Convention on Contracts for the International Sale of Goods; (3) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (4) the Protocol amending the 1974 Convention, done at Vienna, April 11, 1980. The exclusive venue any Claims that arise from this Agreement is San Francisco County, California.
28. We will work in good faith to resolve any issue you have with the DUO DIGITAL Software working in accordance with the stated specifications we provide, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.
In the interest of resolving disputes between you and DUO DIGITAL in the most expedient and cost-effective manner, you and DUO DIGITAL agree that ALL disputes arising out of or related to this Agreement and/or your use of any of DUO DIGITAL’s products, whether based in tort, statute, fraud, contract, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these terms, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. This arbitration provision shall survive termination of this Agreement and any other contractual relationship between you and DUO DIGITAL. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DUO DIGITAL ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
IN ALL INSTANCES, DUO DIGITAL WILL SELECT THE ARBITRATOR.
29. Notwithstanding the paragraph above, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if such an action is available; or (c) seek injunctive relief in a court of law.
30. If you desire to assert a claim against DUO DIGITAL, and you therefore elect to seek arbitration, you must first send to DUO DIGITAL, by certified mail, a written Notice of your claim (“Notice”). The Notice to DUO DIGITAL should be addressed to: Duo Digital Prints, Inc., 2455 East 58th Street, Vernon, CA, 90058, Legal Department (“Notice Address”). If DUO DIGITAL desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by DUO DIGITAL, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If DUO DIGITAL and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or DUO DIGITAL may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by DUO DIGITAL or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association (“AAA”) at www.adr.org. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association, as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Agreement, including this arbitration agreement. Any arbitration hearing will take place at a location selected by DUO DIGITAL in San Francisco County, California. If your claim is for US $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds US $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.
31. YOU AND DUO DIGITAL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and DUO DIGITAL agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If this specific provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of this Agreement shall remain in full force and effect; and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts in San Francisco, California.
32. When you download, access, or use the DUO DIGITAL Software, you are agreeing to indemnify DUO DIGITAL and the Platform and their respective owners, shareholders, subsidiaries, affiliates, officers, employees, partners, and licensors and hold them harmless from any and all claims and expenses, including attorney's fees, arising from the use of the DUO DIGITAL API. By using the DUO DIGITAL API you are agreeing to release DUO DIGITAL and the Platform and their respective owners, shareholders, subsidiaries, affiliates, officers, employees, partners, and licensors from any and all claims, fees, costs, damages and obligations of any kind whatsoever that you may have against them arising out of or in any way related to such claims or obligations and to any disputes regarding use of ideas and/or related materials submitted to the DUO DIGITAL API. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT SUCH RELEASES. FOR EXAMPLE, YOU SPECIFICALLY AGREE TO WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES:
"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 IS KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
33. You may not sublicense, assign or transfer this Agreement or the DUO DIGITAL API except as expressly provided in this Agreement. Any attempt to otherwise sublicense, assign or transfer any of the rights, duties or obligations hereunder is null and void.
34. The parties agree that where the context of any provision indicates an intent that it will survive the term of this Agreement, then it will survive.
35. If you have any questions about this Agreement, please email us at email@example.com.