Full Legal Agreement
The following terms and conditions and the terms and conditions at http://www.aviary.com/legal/terms (collectively, the "Terms") govern your use of any and all data, text, software, code libraries, software development kits, tools, documents and other materials associated with the application programming interface offered by Aviary, Inc. (the "API"). By clicking on the "Accept" button, OR BY USING OR ACCESSING ANY PORTION OF THE API, you or the entity or company that you represent are unconditionally agreeing to be bound by these Terms, including those available by hyperlink from within this document, and are becoming a party to these Terms. Your continued use of the API shall also constitute assent to these Terms. If you do not unconditionally agree to all of these Terms, DO NOT USE OR ACCESS ANY PORTION OF THE API. If the Terms set out herein are considered an offer, acceptance is expressly limited to these Terms. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE API, IN WHOLE OR IN PART.
If you use the API, you automatically agree to these Terms of Service. Don't use our API if you don't agree with this document!
1. Grant of License
Subject to your ("Licensee") full compliance with all of these Terms, Aviary, Inc. ("Aviary") grants Licensee a non-exclusive, revocable, nonsublicensable, nontransferable license to download and use the API solely to embed a launchable Aviary application within Licensee’s mobile or website application (“App”) and to access data from Aviary in connection with such application. Licensee may not install or use the API for any other purpose without Aviary's prior written consent.
Licensee shall not distribute (for free or at a cost) any custom content through its implementation of the Aviary API or within the Aviary editor without Aviary's prior written consent. Licensee shall not use the API in connection with or to promote any products, services, or materials that constitute, promote or are used primarily for the purpose of dealing in: spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email ("spam"), multi-level marketing proposals, hate materials, hacking/surveillance/interception/descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories.
Use Aviary the way it's intended (as a photo-enhancement service), or get our permission first.
If your service does anything illegal or potentially offensive, we don't want Aviary to be in your app. Nothing personal - it just reflects badly on our brand or create awkward legal situations for us we'd rather avoid.
Licensee agrees to the following: (i) it will not remove, obscure and/or disrupt Aviary branding credit screens without prior written permission by Aviary; (ii) it may not otherwise use the Aviary logo without prior written permission from Aviary; and (iii) any use of the Aviary logo in conjunction with Licensee’s application or website shall be less prominent than the logo or mark that primarily describes the Licensee application or website, and Licensee’s use of the Aviary logo shall not imply any endorsement of the Licensee application or website by Aviary.
Notwithstanding the foregoing, this Section 2 shall not apply to any Licensee who has received written permission from Aviary to remove all Aviary branding or attribution from or otherwise “white label” the Aviary editor, API or any other technology licensed by Aviary hereunder. To the extent Licensee has not received such permission from Aviary, Licensee agrees to adhere to the branding obligations set forth in this Section 2.
- Unless you are an authorized white-label partner, don't remove or obscure the Aviary logo, credit screen or link to Aviary in the editor without our express permission.
- We're probably cool with you using our logo as part of a press release announcing our editor or otherwise promoting your use of Aviary. Just please ask us first.
- Please make sure that your users aren't confused as to who made your app by always keeping your logo more prominent than ours. You did most of the hard work for your app and should get all of the credit.
3. Proprietary Rights
As between Aviary and Licensee, the API and all intellectual property rights in and to the API are and shall at all times remain the sole and exclusive property of Aviary and are protected by applicable intellectual property laws and treaties. Except for the limited license expressly granted herein, no other license is granted, no other use is permitted and Aviary (and its licensors) shall retain all right, title and interest in and to the API and the Aviary logos.
Aviary owns all of the rights in the API it is allowing you to use. Our allowance of you to use it, does not mean we are transferring ownership to you.
4. Other Restrictions
Except as expressly and unambiguously authorized under these Terms, Licensee may not:
- copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly authorized by applicable statutory law), modify or alter any part of the API without the prior written consent of Aviary;
- otherwise use the API on behalf of any third party;
- sell or otherwise receive compensation, without the prior written consent of Aviary, in connection with any product incorporating the API where such product contains no additional original, substantive functionality outside of the API;
- enable, require or cause any user to purchase an item or service as a condition to continue use of the API.
- Please don't break our API down and redistribute it without our consent.
- Please don't agree to use our API if you are not the party using it. If you are a developer building the API into a third party app, please have your client review these terms, as they have to agree to them before they can use the API.
- You can't just package Aviary's photo editor and distribute it as a new app with the intention of making money. Aviary is meant to be just a part of your app, not the app itself.
- You can't charge your users for access to Aviary's photo editing features.
Aviary reserves the right to add, remove, modify or alter any and all content existing within or transmitted through the API or the Aviary editor (the “Aviary Content”), including but not limited to (i) free, sponsored or purchasable content, or (ii) installable filters/effects, fonts, stickers, overlays, shapes, tools, masks, props, stamps, frames and other enhancements. In accordance with the foregoing, Aviary grants Licensee a nonexclusive, revocable, nonsublicensable (except to Licensee’s end users), nontransferable license to access and use the Aviary Content solely in conjunction with the use of the API or the Aviary Editor in accordance with these Terms.
Aviary can dynamically update the content tools (i.e. effects/filters, frames, stickers, etc...) with new installable content packs for your users. This may include free, sponsored, or purchasable content (which you need to opt into).
We give you and your users a right to use this content within the context of our API (only). To be clear, your users can edit photos using Aviary content packs using Aviary's API inside of your app and then share the resulting edited photos outside of Aviary.
Aviary shall invoice Licensee for all fees due hereunder. Payment of all applicable fees shall be due thirty (30) days from the invoice date and sent via wire (preferred) or check (alternative) to Aviary as detailed in the invoice. If Licensee cancels access to the API within any given day of the month, then Licensee shall continue to have full access to the API for such month and will not receive a refund for such month. If Licensee terminates these Terms for a material breach thereof by Aviary, and such breach has not been cured by Aviary within five (5) business days after receiving written notice thereof (email being sufficient), Aviary shall issue a pro-rata refund of pre-paid fees for unused access to the API.
If you subscribe to a version of the API which costs money, then you will receive monthly invoices. Please pay us within 30 days of receiving the invoice through wire or check.
If you cancel your subscription through no material fault of Aviary, your access to the API will remain active until the last day of the current month (or month you scheduled cancellation). You will pay for that full month.
If you cancel your subscription because Aviary breeched this agreement, and we have not fixed it within 5 business days of written notice, we'll give you a pro-rated refund of any pre-paid fees for unused days.
7. Modifications to these terms
Aviary reserves the right, in its sole discretion to modify these Terms at any time by posting a notice to Aviary.com. You shall be responsible for reviewing and becoming familiar with any such modification. Such modifications are effective upon first posting or notification and use of the Aviary API by Licensee following any such notification constitutes Licensee’s acceptance of the terms and conditions of these Terms as modified.
We may update this agreement from time to time, as needed. We don't anticipate any major changes, just tweaks to the legalese to reflect any new feature updates or material changes to how the API is offered. While we will make a good faith effort to notify everyone when these terms update with posts on our blog, etc... it's your responsibility to keep up-to-date with these terms on a regular basis. We'll post the last-update date at the bottom of the agreement to make it easier to know if the terms have changed.
8. Warranty Disclaimer
THE API IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AVIARY AND ITS VENDORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE API, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. FURTHER, AVIARY DISCLAIMS ANY WARRANTY THAT LICENSEE'S USE OF THE API WILL BE UNINTERRUPTED OR ERROR FREE.
Things might break. Hopefully not and if so, we'll do our best to fix it immediately. But if it happens, please note that we aren't responsible. You are using the API "as is" and understand the risk inherent in that.
9. Support and Upgrades
These Terms do not entitle Licensee to any support and/or upgrades for the APIs, unless Licensee makes separate arrangements with Aviary.
We can't promise to offer any kind of support or future upgrades. We plan to help all of our partners to the best of our ability, but use of our API doesn't legally entitle you to this. Subtle, but important, difference.
10. Liability Limitation
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, IN NO EVENT WILL AVIARY OR ITS VENDORS, BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE API, EVEN IF AVIARY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, AVIARY DISCLAIMS ALL LIABILITY OF ANY KIND OF AVIARY'S VENDORS.
Want to sue us anyway? That's cool (really not), but you only have a year to do it. Better act quick, Perry Mason.
Licensee agrees that Aviary shall have no liability whatsoever for any use Licensee makes of the API. Licensee shall indemnify and hold harmless Aviary from any and all claims, damages, liabilities, costs and fees (including reasonable attorneys' fees) arising from Licensee's use of the API.
You acknowledge that we aren't responsible at all, for anything that happens resulting from your use of our API.
12. Term and Termination
These Terms shall continue until terminated as set forth in this Section. Either party may terminate these Terms at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of these Terms. Any termination of these Terms shall also terminate the license granted hereunder. Upon termination of these Terms for any reason, Licensee shall immediately cease and desist from any new distributions of the API to third parties. Additionally, Licensee shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the API, and shall so certify to Aviary that such actions have occurred. Aviary shall have the right to inspect and audit Licensee's facilities to confirm the foregoing. Sections 3, 8, 10, 11, 12, 15, 16 and all accrued rights to payment shall survive termination of these Terms.
We can revoke your license (and you can choose to end your license) at any time, for any reason. We won't take this lightly, but we do hold onto this right should it be needed.
If either party terminates this license, you will need to remove the Aviary API from your code entirely and make sure that any new distributions of your app will have access to our API removed from it. We'll have the right to double-check to make sure you have.
Terminating the agreement ends your ability to use our API. It doesn't change some of the other sections or remove your obligation to owed payments.
Aviary may, in its discretion and without warning or consent, immediately and permanently terminate these Terms and Licensee’s access to the API and the Aviary editor for any or no reason (including without limitation, breach of these Terms).
While we will NEVER take this decision lightly and hope to never have reason to use it, Aviary reserves the right to prevent further usage of the editor within your app(s), at any time, for any reason, at its sole discretion.
14. Government Use
If Licensee is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the API are restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The API are a "commercial item," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the API by the Government shall be governed solely by these Terms.
Work for the government? Here is some special legalese just for you.
15. Export Controls
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the API in violation of any such restrictions, laws or regulations. By downloading or using the API, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
To any potential partner located in a country with whom it is illegal for the USA to do business: We're genuinely sorry our governments are being jerks to each other and look forward to the day when it isn't illegal for us to do business together.
Unless the parties have entered into a written amendment to these Terms that is signed by both parties regarding the Aviary API, these Terms constitute the entire agreement between Licensee and Aviary pertaining to the subject matter hereof, and supersedes any and all written or oral agreements with respect to such subject matter. These Terms, and any disputes arising from or relating to the interpretation thereof, shall be governed by and construed under New York law as such law applies to agreements between New York residents entered into and to be performed within New York by two residents thereof and without reference to its conflict of laws principles or the United Nations Conventions for the International Sale of Goods. Except to the extent otherwise determined by Aviary, any action or proceeding arising from or relating to these Terms must be brought in a federal court in the Southern District of New York or in state court in New York County, New York, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The prevailing party in any action arising out of these Terms shall be entitled to an award of its costs and attorneys' fees. These Terms may be amended only by a writing executed by Aviary. If any provision of these Terms is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of Aviary to act with respect to a breach of these Terms by Licensee or others does not constitute a waiver and shall not limit Aviary's rights with respect to such breach or any subsequent breaches. These Terms are personal to Licensee and may not be assigned or transferred for any reason whatsoever (including, without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Aviary's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. Aviary expressly reserves the right to assign these Terms and to delegate any of its obligations hereunder.
This is the entire and only material agreement on this matter between our companies (unless we have another one, signed by both of us).
Any disputes on this agreement will be governed by NY law and NY courts. While you are in town suing us, please do make sure to stop in a real NY deli and get some pastrami and rye. It's delicious!
More discussion of where the court will be located. Like boyscouts, our motto is "Always Be Prepared" and courts and wedding halls book up early this time of year.
You sue us and we win, you're buying our attorneys a new Mercedes.
Even if you use white-out on your screen to erase some of this agreement, it doesn't matter. Only Aviary can put the white-out on the screen.
If some of this agreement isn't legally valid, whatever remains of it will hold strong.
If we don't respond quickly to your breaching this agreement, it doesn't mean we can't do so in the future.
This agreement will always be between Aviary, Inc and you. You can't transfer this agreement. If someone buys your product or company and plans to continue using it, they will need to agree to these terms separately.
In the event that Aviary, Inc is sold or the API changes ownership, Aviary will be able to transfer the API to a new owner without impacting our agreement.
If a part of this agreement isn't legally valid, whatever part is legally valid will hold strong.
Last Updated September, 2013