X MASTER LICENSE AGREEMENT
This X Master License Agreement ("Agreement") is entered into between you (either an individual or an entity, referred to herein as “you”) and X (as defined below), on behalf of itself and its affiliates, and governs your use of and access to the Licensed Material and Services (both as defined below).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, INCLUDING, WITHOUT LIMITATION, ANY LINKED OR REFERENCED TERMS AND CONDITIONS, WHICH ARE HEREBY MADE PART OF THIS AGREEMENT. BY ENTERING INTO AN ORDER OR OTHER DOCUMENT REFERENCING THIS AGREEMENT, CLICKING A BUTTON OR CHECKING A BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, OR BY OTHERWISE ACCESSING OR USING THE LICENSED MATERIAL OR SERVICES, OR ANY PORTION THEREOF, YOU ARE AGREEING THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO COMPLY WITH AND TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, THEN YOU MAY NOT ACCESS OR USE ANY PORTION OF THE LICENSED MATERIAL OR SERVICES. THIS AGREEMENT IS EFFECTIVE AS OF THE EFFECTIVE DATE SET FORTH IN AN ORDER, THE DATE YOU INDICATE YOUR ACCEPTANCE OR, IF NO SUCH DATE IS SPECIFIED, THE FIRST DATE THAT YOU ACCESS OR USE ANY PORTION OF THE LICENSED MATERIAL OR SERVICES (“AGREEMENT EFFECTIVE DATE”).
IF YOU ARE AN INDIVIDUAL REPRESENTING AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THIS AGREEMENT ON BEHALF OF SUCH ENTITY. YOU MAY NOT USE THE LICENSED MATERIAL AND MAY NOT ACCEPT THIS AGREEMENT IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH X, OR IF YOU ARE BARRED FROM USING OR RECEIVING THE LICENSED MATERIAL UNDER APPLICABLE LAW.
1.1 “Customer Application” means each of your enterprise applications as set forth and mutually agreed to in an Order.
1.2 “Developer Policy” means the X Developer Policy located at https://developer.x.com/developer-terms/policy.
1.3 “Display Requirements” means the X Developer Display Requirements located at https://developer.x.com/developer-terms/display-requirements.
1.4 “End Users” means users of your Customer Application.
1.5 “Enrichments” means enrichments made to X Content as identified in an Order, including without limitation, inferred metadata, such as user age, gender, Post topic, interests, influence, and geography.
1.6 “Licensed Material” means, collectively the X Technology, X Content and X Marks.
1.7 “Logo Policy” means the X Brand Assets and Guidelines located at https://about.x.com/who-we-are/brand-toolkit.
1.8 “Order” means each mutually agreed upon order on X’s order form that specifies the X Technology, X Content, Enrichments, and Services to be provided by X, including the type or quantity of items, the fees for such items and any additional terms applicable to the use of such items.
1.9 “Services” means the access to the X Technology and X Content provided by X, as well as any other services, as specified in an Order.
1.10 “Post” means a posting that is publicly displayed on X Applications.
1.11 “Post ID” means the unique identification numbers generated for each Post.
1.12 “X” means X Corp., with an office located at 1355 Market Street, Suite 900, San Francisco, CA, 94103, USA. If you enter into this Agreement or an Order outside of the United States, Canada or Latin America, Twitter International Unlimited Company with its registered offices at One Cumberland Place, Fenian Street, Dublin 2, D02 AX07, Ireland (“TIUC”) is the contracting entity.
1.13 “X Applications” means X’s consumer-facing products, services, applications, websites, web pages, and other offerings, including without limitation those located at www.x.com and the X mobile applications.
1.14 “X Content” means Posts, Post IDs, X end user profile information, and any other content of X made available to you through X Technology or by any other means authorized by X, and any copies and derivative works thereof.
1.15 “X Marks” means the X and Gnip names, brands, trademarks, service marks and logos that X makes available to you, including without limitation via https://about.x.com/who-we-are/brand-toolkit.
1.17 “X Technology” means X’s proprietary, real-time and historical X Content delivery platform, Application Programming Interfaces (“APIs”), software plugins, code, libraries, protocols, formats, documentation, and other materials, as they may be updated from time to time and made available to you by X under this Agreement.
2. PROVISION OF SERVICES
Subject to the terms and conditions of this Agreement, X will provide the Services to you pursuant to the applicable Order. The Services will begin on the effective date set forth in the applicable Order or, if no effective date is set forth in the Order, the date on which X first makes the Services available and ready for you to use as detailed in the Order.
Subject to the terms and conditions of this Agreement and the Developer Policy (as conditions to the grants below), X hereby grants you, and you hereby accept, a worldwide, non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable right during the applicable Order Term solely to (a) use the X Technology only to access the X Content and conduct analysis of such X Content as set forth in Section 5 (Customer Applications); (b) display the X Content only to End Users on the Customer Application as permitted in the applicable Order and as set forth in the Display Requirements; (c) modify the X Content solely to the extent necessary to display it on the Customer Application; (d) copy the X Content only as necessary to exercise the rights granted above; and (e) use and display the X Marks with the Licensed Material solely to attribute the X Applications as the source of the X Content as set forth in the Logo Policy.
4. RESTRICTIONS ON USE OF LICENSED MATERIAL
4.1 Reverse Engineering and other Limitations. You will not, and will not attempt to (and will not allow others to) (a) reverse engineer, decompile, disassemble or translate the X Technology, or otherwise attempt to derive source code, trade secrets or know-how in or underlying any X Technology or any portion thereof; (b) interfere with, modify, disrupt or disable features or functionality of the X Technology, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the X Technology; (c) copy, sell, rent, lease, sublicense, distribute, redistribute, syndicate, create derivative works of, assign or otherwise transfer or provide access to, in whole or in part, the Licensed Material to any third party except as expressly permitted herein; (d) provide use of the X Technology on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet "links" to the X Technology, or "frame" or "mirror" the X Technology on any other server, or wireless or Internet-based device; (e) use the Licensed Material for any illegal, unauthorized or otherwise improper purposes, including without limitation to store or transmit infringing, libelous, or otherwise unlawful or tortious material, to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights; (f) utilize the Licensed Material to derive or obtain non-public information of individual X users, including without limitation a user’s location; (g) interfere with or disrupt the integrity or performance of the Services, X Technology or X Content contained therein, including by disrupting the ability of any other person to use or enjoy the Services, X Technology or X Content, or attempt to gain unauthorized access to the Services, X Technology, X Content or related systems or networks; (h) access the X Technology in order to build a similar or competitive product or service; (i) remove or alter any proprietary notices or marks on the X Content; or (j) use X Content, by itself or bundled with third party data, or derivative analysis therefrom, to target users with advertising outside of the X Applications, including without limitation on other advertising networks, via data brokers, or through any other advertising or monetization services.
4.2 No Monitoring or Measuring. Despite any other provision herein, you may only use the following information for non-commercial, internal purposes (e.g., to improve the functionality of the Customer Application): (a) aggregate X Applications user metrics, such as number of active users or accounts on X Applications; (b) the responsiveness of X Applications; and (c) results, usage statistics, data or other information (in the aggregate or otherwise) derived from analyzing, using, or regarding the performance of the X Technology. All such information is X’s Confidential Information. You will not use or access the X Content for purposes of creating or distributing a regularly-produced, time-based series of measurements made using the same, or similar, methodologies for the purpose of comparing television program performance over time, or against a defined set or subset of other television programs.
4.3 Rate Limits. You will abide by the limitations on access, calls and use of the X Technology, if any, as set forth in an Order (“Rate Limits”). You will not attempt to exceed or circumvent such Rate Limits or otherwise use X Technology in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of this Agreement. If you exceed or X reasonably believes that you have attempted to circumvent any Rate Limits, controls to limit use of the X Technology or the terms and conditions of this Agreement, then X may temporarily suspend or permanently block your ability to use the Licensed Material. X may monitor your use of the X Technology to improve the X Applications or X Technology and to confirm your compliance with this Agreement.
4.4 Security. You will maintain the security of the X Technology and will not make available to a third party, any token, key, password or other login credentials to the X Technology. You will use industry standard security measures to prevent unauthorized access or use of any of the features and functionality of the X Technology, including access by viruses, worms, or any other harmful code or material. Additionally, you will keep X Content (including, where applicable, personal data) confidential and secure from unauthorized access by using industry-standard organizational and technical safeguards for such data, and with no less care than you use in connection with securing similar data stored by you. You will immediately notify X, consult and cooperate with investigations, assist with any required notices, and provide any information reasonably requested by X if you know of or suspect any breach of security or potential vulnerability of the Licensed Material and will promptly remedy such breach or potential vulnerability resulting from your access to the Licensed Material.
4.5 Location Data. You will not (and will not allow others to) aggregate, cache, or store location data or any other geographic information contained in X Content, separately from the Post to which it is attached. You may only use such location data and geographic information to identify the location tagged by the Post. You will not make use of such location data or geographic information on a standalone basis.
4.6 Use of X Marks. The X Marks may not be included in or as part of your registered corporate name, any of your logos, any Customer Application, or any of your service or product names. Moreover, you will not create any derivative works of the X Marks or use the X Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with X. You will not otherwise use business names and/or logos in a manner that can mislead, confuse, or deceive End Users. All use of the X Marks and all goodwill arising out of such use, will inure to X’s benefit. You will not use the X Marks except as expressly authorized herein without Xs prior consent. You will not remove or alter any proprietary notices or X Marks on the Licensed Material.
5. CUSTOMER APPLICATIONS
5.1 Approval of Use Case. You may only use the X Content as specifically detailed in a mutually executed Order. You will submit to X each proposed use of the X Content and X shall have the right to approve the analysis and integration of the X Content into the Customer Application before initial launch of each Customer Application (X’s approval to be signified solely by its signature on the Order). Additionally, You must submit to X for approval (a) each new Customer Application before launch of such new Customer Application; and (b) each change to an existing Customer Application before any changes are made to the Customer Application, if such changes impact the End User experience with the X Content or the Customer Application, or expand the use of the X Content beyond the originally approved Customer Application. Your acquisition or integration of any third party service, technology or feature will be considered a new or changes Customer Application requiring X’s approval.
5.3 End User Compliance. During the applicable Order Term, you may only display copies of the X Content solely as part of Customer Application to End Users. You will provide prominent links to the X Terms of Service, located at http://x.com/tos, (collectively with all additional terms and policies linked therein, the “X TOS”) within the Customer Application where X Content is displayed. You will actively monitor and enforce each End User’s compliance with the X TOS, immediately notifying X of all noncompliance. You will immediately terminate an End User’s access to and continued retention of X Content upon notice by X, in the event that, such End User is not in compliance with the X TOS as applicable or is using the X Content in a manner that is otherwise harmful to the X Content, X, its licensors, or its users, or any of the foregoing’s reputation.
6. UPDATES & REMOVALS
6.1 Updates. You acknowledge that X in its sole discretion may update or modify the Licensed Material from time to time (in each instance, an “Update”). You are required to implement and use the most current version of the Licensed Material and to make all changes to the Customer Application that are required as a result of such Update, at your sole cost and expense. You will implement all tools provided by X to enable Updates. Updates may adversely affect the manner in which the Customer Application accesses or communicates with the Licensed Material or displays X Content. Your continued access or use of the Licensed Material will constitute binding acceptance of the Update.
6.2 Backwards Compatibility. X will use commercially reasonable efforts to provide you thirty (30) days advance notice of any Update that is not backwards compatible or that X reasonably believes will remove significant functionality from the Licensed Material.
6.4 Removals. If X Content is deleted, gains protected status, or is otherwise suspended, withheld, modified, or removed from the X Applications (including removal of location information), you will make all reasonable efforts to delete or modify such X Content (as applicable) as soon as possible, and in any case within 24 hours after a written request to do so by X or by a X user with regard to their X Content, unless prohibited by applicable law or regulation and with the express written permission of X.
7. FEES AND PAYMENT TERMS
7.1 Fees and Expenses. You shall pay all fees in the amounts set forth in the applicable Order (“Fees”), subject to a pro rata adjustment for any partial calendar month.
7.2 Payment Terms. You will pay Fees within thirty (30) days after the invoice date. All payments to X are non-refundable except as otherwise expressly provided in this Agreement. All payments will be made in United States dollars via electronic funds transfer, as per the instructions of X. X may invoice parts of an Order separately or may invoice purchases of the Services and licenses to X Content and Enrichment in one invoice to you. Any discounts, interests and taxes invoiced to an Order will be allocated equally to the applicable Services and licenses provided under such Order.
7.3 Late Payments. If you fail to pay any past due invoice within ten (10) days after your receipt of a past due notice from X, X may revoke or suspend the Services and the provision of all X Content and Enrichments until such time as you bring your account completely current. X may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If you are delinquent in your payments for two (2) consecutive months, X may, upon written notice to you, modify the payment terms to require full pre-payment of any or all Orders (both currently contracted and scheduled future provisioned), or require other assurances to secure compliance with your payment obligations hereunder.
7.4 Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Services or the delivery of the X Content or Enrichments, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on X’s net income, and you will be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If you are legally required to withhold on any amounts to be paid to X, you will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to X on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit X to establish X’s right to a credit for such taxes against Xs income tax liability. You will provide X with such assistance as X may reasonably request in connection with any application by X to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable Income Tax Treaty.
7.5 Compliance Audit. X or a mutually agreed upon third party agent subject to obligations of confidentiality will be entitled to inspect and audit any records related to the performance of this Agreement in your control or possession upon reasonable notice to you, and at a reasonable time during normal business hours, for the purpose of verifying compliance with this Agreement and the Fees payable to X for the two (2) year period preceding the audit (the “Audit Period”). X may exercise its audit right no more than once every twelve (12) months, unless it has reasonable cause for noncompliance, and such audit will not unreasonably interfere with your business activities. You will provide full cooperation and assistance with such audit and provide access to all Licensed Materials in your possession, applicable agreements and records. Without limiting the generality of the foregoing, as part of the audit, X may request, and you agree to provide, a written report, signed by an authorized representative, listing your then-current deployment of the Licensed Material. You will pay to X within thirty (30) business days after the completion of the audit the amount of any underpayment revealed by any such audit. In addition, if any such audit reveals an underpayment by you of five percent (5%) or more, then you will also reimburse X for the reasonable costs and expenses of such audit. The requirements of this Section 7.5 will survive for one (1) year following the termination of the last Order governed by this Agreement.
8. TERM AND TERMINATION
8.1 Term. This Agreement will commence on the Agreement Effective Date and will remain effective until all Orders have expired or have been terminated (“Agreement Term”), unless otherwise terminated in accordance with Section 8.2 (Termination). The term of each Order shall be as specified in the applicable Order.
8.2 Termination. A party may terminate this Agreement or an Order if the other party breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach, except in the case of your failure to pay Fees, which must be cured within ten (10) business days after receipt of written notice from X. In addition, a party may terminate this Agreement immediately on written notice to the other party if such other party breaches Section 4 (Restrictions on Use of Licensed Materials), Section 9 (Confidentiality), Section 14.2 (User Protection) or Section 14.3 (Government Use). X may terminate this Agreement and any (or all) Orders immediately upon written notice to you in the event that (a) you merge or are acquired, in whole or in part, by any third party, whether voluntarily or involuntarily, and/or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets, whether you are the surviving or disappearing entity); or (b) you have a receiver or similar party appointed for your property, become insolvent, acknowledge your insolvency in any manner, cease to do business, make an assignment for the benefit of your creditors, or file a petition in bankruptcy. X may terminate this Agreement or an Order without cause with ninety (90) days prior written notice.
8.3 Effect of Termination. Immediately upon the effective date of termination of this Agreement or an Order (whichever is earlier): (a) all licenses granted herein will terminate and X may immediately cease providing the Services and the Licensed Materials, (b) you will permanently delete all X Content and X Marks in all forms and types of media, and all copies thereof, in your possession, (c) any and all of your outstanding payment obligations will immediately become due, and if X terminates this Agreement for your breach under Section 8.2 (Termination), in addition to any other remedies X may have under this Agreement, you will pay X all of the Fees owed for the remainder of each then-current Order Term as set forth in Section 7 (Fees and Payments), and (d) within thirty (30) calendar days after such termination, each party will return or destroy all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information, except as required to comply with any applicable legal or accounting record keeping requirement. Sections 4 (Restrictions on Use of Licensed Materials), 7 (Fees and Payment Terms), 8.3 (Effect of Termination), 9 (Confidentiality), 10 (Intellectual Property), 11 (Representations and Warranties), 12 (Limitation of Liability), 13 (Indemnification) and 14 (Miscellaneous Provisions) will survive expiration or termination of this Agreement for any reason. Neither party will be liable to the other for any damages resulting solely from termination of this Agreement as permitted under this Agreement.
8.4 Suspension. In addition to any other remedy in this Agreement, X may immediately suspend the licenses provided herein and your access to the X Content (or any part thereof) if you or End Users engage in any activity that X reasonably determines is harmful to the X Content, X, its licensors or its users, until you or End User cease such activity and remedy such harm.
9.1 Nondisclosure. “Confidential Information” means the proprietary information provided or made available by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), which is marked “confidential” or “proprietary” at the time of disclosure by the Disclosing Party, or by its nature or content would reasonably be considered confidential under the circumstances by the Receiving Party, including without limitation, information (tangible or intangible) regarding a party’s technology, designs, techniques, research, know-how, specifications, product plans, pricing, customer information, user data, current or future strategic information, current or future business plans, policies or practices, employee information, and other business and technical information. Confidential Information of X includes X Technology. The terms of this Agreement will be considered Confidential Information. Receiving Party agrees that it will not (a) use the Disclosing Party’s Confidential Information in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement, or (b) disclose to any third party (except as expressly permitted by this Agreement, required by law or to such party’s attorneys, accountants and other advisors as reasonably necessary or contractors that are bound by written agreements at least as restrictive as this Agreement) any Confidential Information of the Disclosing Party. Receiving Party will protect the confidentiality of the Confidential Information of the Disclosing Party using precautions that are at least as stringent as it takes to protect its own Confidential Information, but in no case less than reasonable precautions.
9.2 Exceptions. Receiving Party will have no obligations of confidentiality under Section 9.1 (Nondisclosure) for information that is proven by Receiving Party (a) to have been known to Receiving Party prior to its receipt from Disclosing Party from a source other than one having an obligation of confidentiality to Disclosing Party; (b) to have become publicly known, except through a breach of this Agreement by Receiving Party; or (c) to have been entirely independently developed by Receiving Party without use of or reference to the Confidential Information of Disclosing Party. Receiving Party may disclose Confidential Information pursuant to the requirements of a governmental agency or applicable law, and, to the extent permitted, it will give Disclosing Party reasonable prior written notice sufficient to permit Disclosing Party to contest such disclosure.
9.3 Publicity. You may publicly state generally that you have a relationship with X provided that you do not issue any press release or otherwise make any public announcement with respect to this Agreement, the X Technology or the X Content (including any derivatives thereof or resulting analytics, including without limitation any analytics regarding television programming, films or musical performances), any of the activities contemplated hereby, or concerning the relationship between you and X without Xs prior written consent. X will use commercially reasonable efforts to review communications for approval within fifteen (15) business days.
10. INTELLECTUAL PROPERTY
10.1 Ownership. The Licensed Materials are licensed, not sold, and X retains and reserves all rights not expressly granted in this Agreement. You acknowledge that X its licensors and its end users retain all worldwide right, title and interest in and to the Licensed Material, including all rights in patents (including all applications therefor), trademarks, trade names, copyrights, trade secrets, know-how, data, and all proprietary rights under the laws of the United States, any other jurisdiction or any treaty (“IP Rights”). You will not do anything inconsistent with such ownership, including without limitation, challenging X’s ownership of the X Marks, challenging the validity of the licenses granted herein, or otherwise copying or exploiting the X Marks during or after the termination of this Agreement, except as specifically authorized herein. If you acquire any rights in the X Marks or any confusingly similar marks, by operation of law or otherwise, you will and hereby do, at no expense to X, immediately assign such rights to X.
10.2 Usage Data. X may publish, share or otherwise distribute, to any party, analytics, statistics or other data related to your use of the X Technology, web service, portal or proxy usage (“Usage Data”), provided that such Usage Data are aggregated with the data from other X customers or users in a manner that does not allow usage data about you to be separated from the aggregate data and be identified as originating from you.
10.3 Feedback. You may provide X with comments concerning the Licensed Material, Services or your evaluation and use thereof (collectively, “Feedback”). You hereby grant X an exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide right and license to copy, modify, create derivative works from, publicly display, perform, disclose, distribute, license and sublicense, incorporate and otherwise use the Feedback (including all intellectual property rights therein), for any and all commercial and non-commercial purposes with no obligation of any kind to you.
11. REPRESENTATIONS AND WARRANTIES
11.1 Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound. Each party’s sole and exclusive remedies for any and all breaches of this Section 11.1 (Mutual Representations and Warranties) by the other party are termination of this Agreement pursuant to Section 8.2 (Termination) and the indemnity obligations set forth in Section 13 (Indemnification).
11.2 Service Level Commitment.
(a) Average Speed to Answer. X will use commercially reasonable efforts to respond within one (1) business day to technical issues, notice about which you deliver to X via electronic mail within five (5) days after such technical issue arose.
(b) API Reliability. X provides API service dependent on the uptime of its third party providers. X is not responsible for outages from these parties. X will use commercially reasonable efforts to promptly notify you in the event of an outage caused by a third party provider and to restore service.
(c) Remedies. In the event of a breach by X of the commitments in this Section 11.2, your sole remedy will be termination of this Agreement pursuant to Section 8.2 (Termination).
(d) Service Reliability. X is not responsible for outages or delays originating from its licensors and service providers. You are responsible for providing all support and technical assistance to End Users regarding their use of the Customer Application (including as related to the Licensed Materials). For emergency service interruptions, defined as a fifty (50%) percent or greater drop in the volume of X Content delivered to you over a sustained period of at least ten (10) minutes, you may notify X via a designated emergency communication channel or ticketing service. X will use reasonable efforts to respond within sixty (60) minutes.
11.3 Disclaimer of Third Party Actions. You acknowledge that X does not and cannot control the flow of X Content to or from the X Technology or within any portion of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or omissions of such third parties can impair or disrupt your connections to the Internet (or portions thereof). Although X will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events with respect to your access to the X Content, X does not guarantee or represent that such events will not occur. Accordingly, X disclaims any and all liability resulting from, or related to, such events.
11.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 11 (REPRESENTATIONS AND WARRANTIES), THE SERVICES AND THE LICENSED MATERIAL ARE PROVIDED SOLELY “AS IS”, “AS AVAILABLE” WITH ALL FAULTS, AND YOUR USE OF THE LICENSED MATERIAL IS AT YOUR SOLE RISK. X DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THIS AGREEMENT. X DOES NOT WARRANT THAT THE SERVICES, THE X TECHNOLOGY, OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
12. LIMITATION OF LIABILITY
12.1 EXCEPT AS SET FORTH IN SECTION 12.2, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR FOR LOST REVENUE, LOST PROFITS, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF TECHNOLOGY, GOODWILL, RIGHTS OR SERVICES, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE OF SERVICE IN CONNECTION WITH THIS AGREEMENT; AND (B) X'S TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY YOU TO X UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM(S).
12.2 Section 12.1 will not apply to (a) breaches of confidentiality obligations, or (b) infringement or misappropriation of the other party’s intellectual property rights, including without limitation, Your breach of Section 4.1 (Reverse Engineering and Other Limitations).
12.3 No Content Liability. X will have no liability whatsoever with regard to the contents of the X Content.
12.4 THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY WHETHER OR NOT (A) SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE; (B) SUCH LIABILITY IS FORESEEABLE OR CONTEMPLATED BY THE PARTIES ON THE EFFECTIVE DATE; AND (C) THE DAMAGED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13.1 Claims Against You. X will defend, at its own expense, any claim, suit or action brought against you by a third party to the extent that such claim, suit or action arises from an allegation that the X Technology, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party (“Customer Claim”), and X will indemnify and hold you harmless from and against liability incurred by you to the extent arising from such Customer Claim. If X receives prompt notice of a Customer Claim that, in X's reasonable opinion, is likely to result in an adverse ruling, then X may, at its sole discretion, (a) obtain a right for you to continue using the X Technology at issue; (b) modify such X Technology to make it non-infringing; (c) replace such X Technology with a non-infringing version; or (d) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing X Technology. Notwithstanding the foregoing, X will have no obligation under this Section 13.1(Claims Against You) or otherwise with respect to any infringement claim based upon: (a) any use of the X Technology not expressly permitted under this Agreement; (b) any use of the X Technology in combination with products, equipment, software, or data not made available by X if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (c) any modification of the X Technology by any person other than X or its authorized agents or subcontractors. X will have no obligation under this Section 13.1 (Claims Against You) or otherwise with respect to any claim based upon your use of any X Content accessed through the X Technology to the extent such claim is not based on the X Technology itself. This Section 13.1 (Claims Against You) states X’s entire liability and your sole and exclusive remedy for all third party claims.
13.2 Claims Against X. You will defend, at your own expense, any claim, suit or action against X brought by a third party to the extent that such claim, suit or action arises from (a) your failure to comply with any applicable law or regulation, (b) your infringement of any third party’s IP Right, (c) your use of any X Content except as expressly permitted by this Agreement, or (d) your products or services (each, a “X Claim”), and you will indemnify and hold X harmless from and against liability incurred by X that is specifically attributable to such X Claim or those costs and damages agreed to in a monetary settlement of such X Claim.
13.3 Procedure. The foregoing obligations are conditioned on the party seeking indemnification: (a) promptly notifying the other party in writing of such claim; (b) giving the other party sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution (x) causes or requires an admission or finding of guilt against the indemnified party, (y) imposes any monetary damages against the indemnified party, or (z) does not fully release the indemnified party from liability with respect to the claim.
14. MISCELLANEOUS PROVISIONS
14.1 Force Majeure. Except for your obligation to make payments to X, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If X is unable to provide Services for a period of sixty (60) consecutive calendar days as a result of a continuing force majeure event, you may cancel the Services without further obligation.
14.2 User Protection. Unless explicitly approved otherwise by X in writing, you may not use, or knowingly display, distribute, or otherwise make X Content, or information derived from X Content, available to any entity for the purpose of: (a) conducting or providing surveillance or gathering intelligence, including but not limited to investigating or tracking X users or X Content; (b) conducting or providing analysis or research for any unlawful or discriminatory purpose, or in a manner that would be inconsistent with X users' reasonable expectations of privacy; (c) monitoring sensitive events (including but not limited to protests, rallies, or community organizing meetings); or (d) targeting, segmenting, or profiling individuals based on sensitive personal information, including their health (e.g., pregnancy), negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, X Content relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law.
14.3 Government Use. If the Customer Application will display, distribute, or otherwise make available any X Content to End Users that are, or that act on behalf of, any government-related entity (each a “Government End User”), you will identify all such Government End Users when submitting that use case for review to X and will thereafter notify X in writing of any new Government End Users, and any new use cases with existing Government End Users, prior to the Customer Application displaying, distributing, or otherwise making available any X Content to a Government End User or for any new use case, and X will have the right at anytime to prohibit you from making X Content available to any new Government End User. In no event shall your use, or knowingly display, distribute, or otherwise make X Corp. Content, or information derived from X Content, available to any Government End User whose primary function or mission includes conducting surveillance or gathering intelligence. If law enforcement personnel request information about X or its users for the purposes of an ongoing investigation, you may refer them to X Guidelines for Law Enforcement located at https://help.x.com/rules-and-policies/x-law-enforcement-support. The X Technology and X Content are "commercial items" as those terms are 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. Any use, modification, derivative, reproduction, release, performance, display, disclosure or distribution of the X Technology or X Content by any government entity is prohibited, except as expressly permitted by the terms of this Agreement. Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. If you use the X Technology or X Content in your official capacity as an employee or representative of a U.S., state or local government entity and you are legally unable to accept the indemnity, jurisdiction, venue or other clauses herein, then those clauses do not apply to such entity, but only to the extent as required by applicable law. Contractor/manufacturer is X Corp., 1355 Market Street, Suite 900, San Francisco, California 94103.
14.4 Compliance with Laws. Each party will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used, and all applicable laws relating to bribery or corruption. Under these laws, the Licensed Material may not be sold, leased, downloaded, moved, exported, re-exported, or transferred across borders without a license, or approval from the relevant government authority, to any country, including countries embargoed by the U.S. Government (currently Cuba, Iran, North Korea, Northern Sudan and Syria); or to any restricted or denied end-user including, but not limited to, any person or entity prohibited by the U.S. Office of Foreign Assets Control; or for any restricted end-use. You will maintain throughout the Order Term all rights and licenses that are required with respect to the Customer Application. X may terminate or modify this Agreement, an Order or the Licensed Material upon thirty (30) days written notice (or upon a lesser period if required pursuant to legal or regulatory requirement) if X reasonably believes termination or modification is necessary to avoid noncompliance with a legal or regulatory requirement.
14.5 Data Protection Addendum. The parties agree that in addition to this Agreement, the X Controller-to-Controller Data Protection Addendum located at https://gdpr.x.com/controller-to-controller-transfers.html shall apply with respect to the processing of X Content and is hereby incorporated by reference.
14.6 Governing Law; Dispute Resolution. (a) If you enter into this Agreement or an Order within the United States, Canada or Latin American, this Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of California, without regard to conflict/choice of law principles. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in San Francisco, CA before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures; (b) If you enter into this Agreement or an Order outside of the United States, Canada or Latin America, this Agreement shall be governed by and construed solely and exclusively in accordance with the laws of Ireland, without regard to conflict/choice of law principles. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in Dublin, Ireland before a single arbitrator. The arbitration shall be administered by the Rules of Arbitration of the International Chamber of Commerce (ICC); (c) Judgment on the Award may be entered in any court having jurisdiction. You and X hereby expressly waive trial by jury. You may bring claims only on your own behalf, and unless X agrees, the arbitrator may not consolidate more than one party’s claims; (d) The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
14.7 Right to Preliminary and Injunctive Relief. Each party agrees that money damages would be an inadequate remedy in the event of a breach or threatened breach of the provisions in this Agreement protecting such party’s intellectual property and/or such party’s Confidential Information, and that in the event of such a breach or threat, such party, in addition to any other remedies to which it is entitled, is entitled to such preliminary or injunctive relief (including an order prohibiting the other party from taking actions in breach of such provisions), without the need for posting bond, as well as specific performance as may be appropriate to preserve all of such party’s rights.
14.8 Severability; Waiver. If a court or judicial body holds any provision of this Agreement invalid, then the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach in this Agreement will not constitute a waiver of any subsequent breach or default, and will not negate the rights of the waiving party.
14.9 Assignment. You may not assign this Agreement or any of the interests, rights or obligations granted hereunder, in whole or in part, whether voluntarily or by operation of law, contract, merger (whether you are the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or otherwise. Any such attempted assignment, except with the express written consent of X, is null and void, and X may immediately terminate this Agreement. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
14.10 Notice. X may give notices to you by email to the address provided by you in an Order. You must ensure that your contact and account information is current and correct, and promptly notify X in writing of any changes to such information. You will send all notices to X via recognized overnight courier or certified mail, return receipt requested, to: Legal Department, X Corp., 1355 Market Street, Suite 900, San Francisco, California 94103, with an email copy to firstname.lastname@example.org. Such notice will be deemed to have been given as of the date it is delivered, mailed, emailed or sent, whichever is earlier.
14.11 Relationship of Parties. The relationship between you and X is solely that of independent contractors, and this Agreement will not establish any partnership, joint venture, employment, franchise or agency between you and X. Neither you nor X will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
14.12 No Third Party Beneficiaries. There will be no third party beneficiaries to this Agreement.
14.13 Entire Agreement; Counterparts; Originals. This Agreement, including all applicable Orders, Addenda, exhibits and attachments, constitutes the sole, final and entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous understandings and agreements (and all such agreements are hereby terminated), written and oral, regarding such subject matter. This Agreement may only be amended by a written document signed by authorized representatives of you and X. Any terms and conditions agreed to in a mutually agreed upon and executed Order or Addendum will be binding on both parties. The provisions of any such Order and Addendum will govern and take precedence over any conflicting or inconsistent provisions of this Agreement.
Last updated: October 26, 2023