As of March 10, 2021
This SketchAPI License Agreement (“Agreement”) is entered into by and between Customer and Sketch.IO, Inc., a Delaware Corporation located at 11177 SE Mystery Springs Ct, Clackamas, OR 97015 USA. All capitalized terms used in this Agreement and the attached Exhibits and Addenda shall be defined terms in the Agreement or in Exhibits attached hereto.
This Agreement governs use of the SketchAPI application programming interface (together with any documentation, updates, revisions, and substitutions, as well as any copies made by or for Customer, referred to in this agreement as the “SketchAPI”). Sketch.IO may condition delivery to Customer of future updates, revisions and substitutions upon acceptance of revisions to this Agreement.
Please note that Sketch.IO does not provide warranties for the SketchAPI. Sketch.IO provides maintenance and support for the SketchAPI during this Agreement’s Initial Period and, if applicable, any subsequent Renewal Period(s). The contract also limits Sketch.IO’s liability. These terms are in sections 8 and 9 and should be read carefully.
In this Agreement, unless the context requires otherwise:
Freeze State API delivery. Access to the SketchAPI shall be enabled upon execution of this Agreement. Sketch.IO will provide a freeze state of the SketchAPI to Customer via electronic delivery in accordance with Exhibit A. PaintServer will provide updates and new versions of the SketchAPI during this Agreement’s Initial Period and, if applicable, any subsequent Renewal Period(s).
Sketch.IO will provide access to all documented features which it has released to Customers.
The SketchAPI is owned and/or licensed by Sketch.IO and is licensed and/or sublicensed to Customer throughout the Territory on a worldwide, nonexclusive, nonsublicenseable basis on the terms and conditions set forth herein. These terms define legal use of the SketchAPI, all updates, revisions, substitutions, and any copies of the SketchAPI made by or for Customer. All rights not expressly granted to Customer are reserved by Sketch.IO.
a. License. Subject to the terms and restrictions set forth in this Agreement, Sketch.IO grants Customer a worldwide, nonexclusive, nonsublicensable, fully paidup license to use the SketchAPI to develop, test, distribute, support, and integrate the SketchAPI with the Project during this Agreement’s Initial Period and, if applicable, any subsequent Renewal Period(s). The license granted to Customer herein includes the right to use the SketchAPI concurrently to support one iOS app, one Android app and one web app within a single top-level domain.
b. Branding and Trademarks. Customer may use Sketch.IO branding and trademarks to brand products or services based upon the SketchAPI only to support the purposes of this Agreement and the Project. Customer may request permission for additional uses by contacting Sketch.IO. Absent express written permission from Sketch.IO, Customer may not use Sketch.IO branding other than as described in the Project.
c. Rate Limits and Data Fields Restrictions. In the event the SketchAPI is made available as a hosted service, Customer understands that there may be rate limits and restrictions to the data fields displayed per application or service utilizing the SketchAPI hosted service. Sketch.IO shall inform Customer of any applicable rate limits and restrictions in documentation or by email. Customer agrees they shall comply with rate limits and restrictions to the data fields at all times.
d. Modifications. Sketch.IO reserves the right to release subsequent versions of the SketchAPI and to require Customer to obtain and use the most recent version; provided, however, that if the results of the Project become disabled within the Initial Period or Renewal Period as a result of the release, Sketch.IO will take reasonable steps to restore functionality to the results of the Project. If a modification is unacceptable to Customer, Customer may discontinue use of the SketchAPI. By Customer’s continued use of the SketchAPI it will be deemed to have accepted the modifications.
a. Sketch.IO Rights. As between Customer and Sketch.IO, Customer acknowledges that Sketch.IO, or its authorized licensors and assignees, own all right, title and interest, including without limitation all IP and Patent IP, in and to the SketchAPI and that Customer shall not acquire any right, title, or interest in or to the SketchAPI, except as expressly set forth in this Agreement.
b. Source Code. Sketch.IO maintains a codebase including the SketchAPI that includes features, products, and services which may be made available to Customer. Customer acknowledges that it is not the intent of this agreement that Customer gain or have access to, or have any rights in, the source code of the SketchAPI. Customer agrees to treat any and all source code as Confidential Information and treat such Confidential Information in accordance with Section 16 below.
c. Works; Data. As between Customer and Sketch.IO, Customer (and/or its permitted users and assigns) shall be the Author and owner of all works or data produced through its licensed use of the SketchAPI, including drawings, images, representations of data, and original works of authorship, except as otherwise provided in subsection 3.d., below. To the extent necessary to maintain and support the SketchAPI, Customer hereby grants to Sketch.IO a revocable, worldwide, perpetual, fully paidup license to Sketch.IO in Customer’s works and data. Sketch.IO shall notify Customer of any planned uses of Customer’s works and data for support purposes and shall treat all of Customer’s works and data (including any of Customer’s user’s works and data) as Confidential Information pursuant to Section 16.
d. Invention; Authorship. The Parties do not intend to act as coinventors, joint authors, or otherwise to collaborate on the development of the SketchAPI. Sketch.IO or its licensors shall be the Author and Inventor of the SketchAPI.
e. Digital Millennium Copyright Act. Sketch.IO reserves the right to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). In the event that Sketch.IO receives a DMCA notice and exercises its right to remove content, Customer understands that use of the SketchAPI may be affected.
Customer agrees to be responsible for its conduct and content while using the SketchAPI and for any consequences thereof. Customer agrees to use the SketchAPI only for purposes that are legal, proper and in accordance with Agreement.
a. Appropriate conduct. In using the SketchAPI and developing applications, Customer must:
1. Obey the law;
3. Keep any service account password secret;
4. Promptly notify Sketch.IO if Customer learns of a security breach related to the service.
b. Prohibited uses. In using the SketchAPI and developing applications, Customer will not:
1. defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
2. upload, post, email or transmit or otherwise make available any inappropriate, defamatory, obscene, or unlawful content;
3. upload, post, email or transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party without permission;
4. use Sketch.IO services for any illegal or unauthorized purpose;
5. remove any copyright, trademark or other proprietary rights notices contained in or on Sketch.IO services;
6. promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or
7. transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.
8. sell, lease, share, transfer, or sublicense the SketchAPI or access or access codes thereto, whether for direct commercial or monetary gain or otherwise, without Sketch.IO’s prior, express, written permission.
The immediately preceding prohibited uses are by way of example, and not as a limitation. Sketch.IO reserves the right, in its sole discretion, to determine whether Customer’s use of the SketchAPI is in accordance with the terms of this Agreement.
Nothing in this Agreement or the service provide for the collection or transfer of any personally identifiable information of internet users between the Parties.
Any support and maintenance for the Project shall be defined in the Product Detail Agreement.
A) Customer will pay either a monthly or yearly fee based upon the purchased license tier. Fees bill automatically each month or year until cancelled.
THE SKETCHAPI IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND. SKETCH.IO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NONINFRINGEMENT. SKETCH.IO DOES NOT REPRESENT OR WARRANT THAT THE SKETCHAPI IS FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. SKETCH.IO MAKES NO WARRANTY THAT (i) THE SKETCHAPI WILL MEET CUSTOMER REQUIREMENTS, (ii) THE SKETCHAPI SERVICE WILL BE UNINTERRUPTED, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SKETCHAPI SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SKETCHAPI WILL MEET CUSTOMER EXPECTATIONS, AND (v) ANY ERRORS IN THE SKETCHAPI WILL BE CORRECTED.
YOUR USE OF THE SKETCHAPI IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF ANY SKETCHAPI INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.
NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SKETCHAPI OR THE PROJECT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT SKETCH.IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY ACTION AGAINST SKETCH.IO FOR DAMAGES ARISING UNDER THIS AGREEMENT, MONETARY DAMAGES SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100). If applicable law limits the application of the provisions of this Section 9, Sketch.IO’s liability will be limited to the maximum extent permissible.
In the event that the SketchAPI is found to be infringing upon the intellectual property rights of a third-Party, Sketch.IO’s sole responsibility and Customer’s sole remedy shall be for Sketch.IO to a) revise the SketchAPI so as to make it non-infringing or b) purchase or otherwise acquire a license to the third-Party intellectual property so as to allow Customer to continue to use the SketchAPI. Customer shall have no other recourse against Sketch.IO for any claims of infringement regarding the SketchAPI.
To the maximum extent permitted by applicable law, each Party hereby releases and waives all claims against the other Party, its subsidiaries, affiliates, officers, agents, licensors, cobranders or other partners, and employees from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind and nature, arising from or in any way related to the use of SketchAPI.
This Agreement will become effective upon the Effective Date and expire upon the completion of the Initial Period and all Renewal Periods. Either Party may terminate this Agreement early if the other Party is in material breach and has failed to cure said breach within thirty (30) days notice of the breach. Customer will discontinue use of the SketchAPI if this Agreement expires or is terminated.
Immediately upon the completion of the current Initial Period or Renewal Period, a subsequent Renewal Period will automatically begin unless either Party provides the other Party a cancelation notice within thirty (30) days prior to the completion of the current Initial Period or Renewal Period.
Those portions of this agreement that by their nature are intended to survive termination, including but not limited to Sections 3, 8, 9, 10, 14, 15, 16, 17, 18, 19, 20, 21, and 22, shall survive termination or expiration of this Agreement.
Sketch.IO may assign this contract at any time to its Affiliates, or to a third-party in the event of a merger or business consolidation in which Sketch.IO is not the surviving entity, with notice to Customer. Any such assignment will require the assignee to undertake the obligations under this Agreement. Customer may not assign this Agreement, or any part of it, to any other person or Party without prior written consent of Sketch.IO, which will not be unreasonably withheld. Any attempted assignment by Customer without consent is void.
This Agreement is solely for the benefit of Sketch.IO and Customer. It is not for the benefit of any other Party, except for permitted successors and assigns under this Agreement.
a. Definition of Confidential Information. The Parties hereby acknowledge and agree that their engagement has created and will continue to create a relationship of confidence and trust with respect to Confidential Information (as hereinafter defined). As used herein, Confidential Information means any (i) information belonging to any Party (the “Discloser”) which is of value to that Party in the course of conducting its business and the disclosure of which could result in a competitive or other disadvantage to the Discloser, and (ii) information belonging to third parties (“Third Parties”) with which the Discloser has a relationship of trust and confidence and to which it has a duty to maintain confidentiality, in each case, including, but not limited to, identities of the Parties, the existence and terms of this Agreement, information, materials, proprietary information, customer and prospects lists, trade secrets, trade names or proposed trade names, knowhow, ideas, concepts, designs, methodologies, structures, programs, techniques, software, discoveries and data that is either related to or useful in the Discloser’s business or to the Discloser’s actual or demonstrably anticipated research, design, development, experimental production, financing, manufacturing, licensing, distribution or marketing activity or related to Third Parties’ businesses.
b. Protection of Confidential Information. Except as otherwise permitted in writing by the Discloser, (i) the Party receiving Confidential Information (“Recipient”) shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement, and (ii) the Recipient shall limit access to Confidential Information of the Discloser to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
c. Confidential Information Rights of Agents. Third Parties to this Agreement shall not be granted any rights in the Confidential Information, other than that previously held by the Third Party, without a written acceptance of the provisions of this Section. The Parties agree to disclose Confidential Information to a Third Party agent only upon such Third Party’s consent to be bound to preserve confidentiality.
The Parties to this Agreement are at all times independent contractors and shall not be considered a partner, joint venturer, agent, employee or employer of the other. A Party shall not hold out itself or any of its employees to be an agent of the other.
All parts of this Agreement apply to the maximum extent permitted by law. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision and the other provisions of such documents remain in full force and effect. The section headings and subheadings contained in this agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. Any construction or interpretation to be made of this Agreement shall not be construed against the drafter.
This contract may be delivered in, and assent may be expressed in, electronic form. All notices required or contemplated under this agreement may be sent by certified U.S. mail.
A Party’s failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, United States of America, without regard to conflict of laws principles. The place for resolving any dispute arising from this Agreement shall be Portland Oregon—any lawsuit initiated under this agreement shall be filed in a court of competent jurisdiction in Multnomah County, Oregon.
This Agreement constitutes the entire agreement between Sketch.IO and Customer with respect to the subject matter hereof.