This SmarterU® Developer Agreement (these “Terms”) governs your access to and use of SmarterU’s (SmarterU Enterprise LMS, a division of Neovation Corporation) application programming interfaces (“APIs”), software development kits (“SDKs”), app keys and access tokens, and developer webpages and documentation (“Documentation” or collectively, the “Developer Platform”).
The Developer Platform is designed to allow you to connect your new and existing applications, products, and services (“Your Applications”) with SmarterU’s own applications, products, and services (collectively, the “SmarterU Service”).
These Terms are binding on any use of the Developer Platform and apply to you from the time that SmarterU provides you with access to the Developer Platform. Please read them carefully and be sure to occasionally check back for updates.
By registering to use the Developer Platform, you acknowledge that you have read and understood these Terms and have the authority to act on behalf of any person for whom you are using the Developer Platform. You are deemed to have agreed to these Terms on behalf of any entity for whom you use the Developer Platform. You may not use the Developer Platform if you do not agree to these Terms.
In these Terms, you are referred to as “Developer” or “you” or “your.” If you are agreeing to these Terms not as an individual but on behalf of a company, then “Developer” or “you” or “your” means your company and you are binding your company to these Terms.
SmarterU reserves the right to change these Terms at any time, effective upon the posting of modified Terms and SmarterU will communicate these changes to you via email or notification via the Website. It is likely the Terms will change over time. It is your obligation to ensure that you have read, understood and agree to the most recent Terms available on the Website.
Definitions used in these Terms, unless otherwise defined in these Terms, will have the same meaning given to them in the Master Subscription Agreement found here.
2. Your Use Rights
Subject to these Terms, you may use the Developer Platform solely to enable Your Applications to access or interface with the SmarterU Service. Your use must be as permitted in our Documentation and is subject to call, usage, and other limits as posted or as we otherwise notify you. All of your rights are non-assignable, non-transferrable, and non-sublicensable.
3. Support and Modification
While we may provide you with support or modifications for the Developer Platform, we are not obligated to do so and have no obligation to fix or respond to errors you may encounter. In our discretion and without liability to you, we may add, remove, or modify any features of the Developer Platform; impose additional eligibility requirements or restrictions for access to the Developer Platform; or discontinue the Developer Platform. If we modify the Developer Platform, we may require you to use the modified version which may not be compatible with Your Applications developed using previous versions. We typically make these changes as part of our overall Developer Platform program and may not be able to provide you with individual notice of the changes.
4. Branding and Publicity
“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party. Except where expressly stated, these Terms do not grant either party any right, title, or interest in or to the other party’s Brand Features. You may not use SmarterU’s Brand Features without SmarterU’s prior written consent. Any permitted use by you of SmarterU’s Brand Features (including any goodwill associated therewith) will inure to the benefit of SmarterU.
You may promote Your Application, including talking to traditional and online media and your users about Your Application. You must conduct all such activities truthfully and without implying that Your Application is created, sponsored, or endorsed by SmarterU (or otherwise embellishing your relationship with SmarterU). You may not make any legal representations, guarantees, or warranties on behalf of SmarterU or with respect to the Developer Platform or the SmarterU Service.
SmarterU may publicly refer to you, orally or in writing, as a user of the Developer Platform. We may also publish your Brand Features (with or without a link to Your Application) on our websites, in press releases, and in promotional materials without your prior consent.
5. Your Responsibilities
If a user of the SmarterU Service allows Your Applications to retrieve any data, content or information of a user (“User Data”) from the SmarterU Service, you must (1) access only the minimum data fields Your Applications need to work properly, as permitted by the user and (2) ensure the User Data is collected, processed, transmitted, maintained and used in accordance with Your Terms, all Laws (defined below) and reasonable measures that protect the privacy and security of the User Data. Without limiting the foregoing, Your Terms must contain clear and legally adequate disclosures about the nature of Your Applications’ integration with the SmarterU Service and the User Data you are collecting and how you may use it.
For clarity, any user’s access or use of the SmarterU Service itself is subject to SmarterU’s Master Subscription Agreement or other applicable terms agreed by SmarterU with the user, not Your Terms.
If SmarterU receives any User Data from or on behalf of a user, including through or enabled by Your Applications, SmarterU will treat such User Data under its applicable terms with such user and such data will no longer be subject to Your Terms.
Be a Good Citizen to our Ecosystem
You share our Developer Platform with your fellow developers and you should write Your Applications as you would want others to write theirs. You must not:
Try to exceed or circumvent limitations on calls and use;
Copy, reformat, reverse-engineer, or otherwise modify the Developer Platform, access credentials, or our website or content;
Download, scrape, post, or transmit (in any form or means) any part of our website or content;
Sublicense SmarterU APIs for use by a third party;
Create an API or similar function designed to help you enhance your websites and/or Your Applications that functions substantially the same as any of our APIs and offer it for use by third parties;
Submit to the Developer Platform or SmarterU Service any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature;
Defame, abuse, harass, stalk, or threaten others, promote unlawful activities or send disruptive or offensive messages or advertisements; or
Access the Developer Platform for competitive purposes (including to connect to a competitive product or to create your own competitive product) or publicly disseminate performance information or analysis (including uptime, response time and/or benchmarks) relating to the Developer Platform.
Your Representations and Indemnity
You are solely responsible for your use of the Developer Platform, Your Applications, and any data or content that you use with the Developer Platform. You represent and warrant that (a) you have full power and authority to enter into and perform these Terms; (b) your use of the Developer Platform and Your Applications will not violate any third party rights (including intellectual property rights and rights of privacy or publicity) or any laws, rules, regulations or orders, including those relating to data privacy, data transfer, international communications, and the export of technical or personal data (“Laws”); (c) all information you provide to SmarterU is and will be true, accurate, and complete; and (d) you will not interfere with SmarterU’s business practices, the way in which it offers the SmarterU Service or the Developer Platform or any third party products or networks used with the Developer Platform.
You will indemnify, defend (at SmarterU’s request), and hold harmless SmarterU and its affiliates and their respective directors, officers, employees, agents, contractors, end users, and licensees from and against any claims, losses, costs, expenses (including reasonable attorneys’ fees), damages, or liabilities based on or arising from (i) your use of the Developer Platform, (ii) Your Applications and your relationships or interactions with any users or third party distributors of Your Applications, or (iii) your breach or alleged breach of these Terms. SmarterU may at its own expense participate in the defense and settlement of any claim with its own counsel, and you may not settle a claim without SmarterU’s prior written consent (not to be unreasonably withheld).
6. Disclaimer of Warranties
THE DEVELOPER PLATFORM, THE SMARTERU SERVICE AND ALL OTHER SMARTERU MATERIALS (DEFINED BELOW) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. SMARTERU AND ITS THIRD PARTY LICENSORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PURPOSE. SMARTERU MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE (A) RELATED TO RELIABILITY, ACCURACY, OR COMPLETENESS OF THE DEVELOPER PLATFORM OR ANY SMARTERU MATERIALS, (B) THAT SMARTERU WILL CONTINUE TO OFFER THE DEVELOPER PLATFORM OR (C) THAT USE OF ANY SMARTERU MATERIALS WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS. You may have other statutory rights, in which case the disclaimers above will apply to the full extent permitted by law.
7. Limitation of Liabilities
TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) SMARTERU WILL NOT BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER LIABILITY RELATED TO THE SMARTERU MATERIALS OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY; AND (B) IN ANY EVENT SMARTERU’S ENTIRE AGGREGATE LIABILITY UNDER THESE TERMS WILL BE LIMITED TO THE GREATER OF (1) THE AMOUNT YOU PAID US (IF ANY) TO USE THE DEVELOPER PLATFORM IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM OR (2) ONE THOUSAND CANADIAN DOLLARS (CAD $1,000). You acknowledge and agree that this Clause 7 reflects a reasonable allocation of risk and that SmarterU would not enter into these Terms without these liability limitations. This Clause 7 will survive notwithstanding any limited remedy’s failure of essential purpose.
8. Intellectual Property Rights and Additional Terms
SmarterU Independent Development and Patent Issues
You understand and acknowledge that SmarterU may be independently creating (or may receive from third parties) features, applications, content, or other products or services that may be similar to or competitive with Your Applications, and nothing in these Terms will be construed as restricting or preventing SmarterU from doing so.
In addition, in order to allow others to benefit from the Developer Platform, you agree not to assert (or assist or encourage anyone in asserting) any patent claims against SmarterU (or its users, customers partners or developers, or SmarterU’s or their respective successors, assigns) where such patent claim relates to the integration, combination or interface of any applications, products or services with the SmarterU Service or our other products or services.
SmarterU may reveal Personal Information about developers for attribution purposes, handling inquiries from users or potential users, and other purposes SmarterU reasonably deems necessary under these Terms.
You understand and agree that SmarterU may access, preserve, and disclose your Personal Information and your developer account details if required to do so by law or in a good faith belief that such access, preservation, or disclosure is reasonably necessary to comply with legal process or to protect the rights, property, or safety of SmarterU, its affiliates or partners, its users, or the general public.
As between you and us, we own all rights, title, and interest, including all Intellectual Property Rights, in and to the Developer Platform, SmarterU Service, SmarterU’s Brand Features, our other products and services, and all related technology, websites and content, and any modifications or derivative works of the foregoing (collectively, the “SmarterU Materials”).
Except for the limited use right expressly granted to you under these Terms, SmarterU does not grant you any right, title, or interest in the SmarterU Materials. You have no obligation to give us any suggestions, comments or other feedback relating to the SmarterU Materials (“Feedback”).
If you provide us with Feedback, you grant us a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify, sublicense (through multiple tiers) and otherwise exploit the Feedback (including any ideas, concepts, methods, know-how or techniques embodied in Feedback) for any purpose, without any restriction or obligation to you based on Intellectual Property Rights or otherwise.
You retain ownership of any Intellectual Property Rights in Your Applications, subject to SmarterU’s rights in any underlying SmarterU Materials. If you choose to make Your Applications available in our public marketplace, you agree to provide us with a reasonable number of copies of or other access to Your Applications. During the term of these Terms you hereby grant to us a paid-up, royalty-free, non-exclusive, worldwide, irrevocable, right and license, under all of your Intellectual Property Rights, to: (a) use, perform, and display Your Applications and their content for purposes of our internal testing purposes (including scalability and security testing) and for marketing, demonstrating, and making Your Applications available to users (though we shall have no obligation to do so); and (b) link to and direct users to Your Applications. Following the termination of these Terms and upon written request from you, SmarterU will make commercially reasonable efforts, as determined in its sole discretion, to remove all references and links to Your Applications from the Websites and the SmarterU Service. SmarterU has no other obligation to delete copies of, references to, or links to Your Applications.
9. Confidential Information
SmarterU’s Confidential Information
SmarterU may provide certain information to you that is confidential or proprietary (“SmarterU Confidential Information”). SmarterU Confidential Information consists of (a) your access keys or logins for the Developer Platform, any non-public elements of the Developer Platform or any pre-release information about the SmarterU Service and (b) anything identified or marked as “Confidential” or “Proprietary” or that you should reasonably understand to be confidential or proprietary under the circumstances. You may use SmarterU Confidential Information only for the purposes of these Terms. You may not disclose any SmarterU Confidential Information to third parties, other than your employees, agents and advisors with a need to know and for whom you agree to remain responsible under these Terms.
Your Confidential Information
You should not disclose any information to SmarterU that you consider to be confidential. To avoid any potential confusion, you agree that any unsolicited information you provide to SmarterU in relation to the Developer Platform will be non-confidential and that SmarterU may use it under the same terms as for Feedback above. However, this Clause 9.2 does not apply to the extent you have entered into a separate non-disclosure agreement (NDA) or other confidentiality terms with SmarterU addressing your confidential information in relation to the Developer Platform.
10. Term and Termination
These Terms remain in effect until terminated. You may terminate these Terms at any time by ceasing all use of the Developer Platform and notifying SmarterU. We may terminate these Terms for any reason upon thirty (30) days’ notice to you. In addition, we may suspend or terminate these Terms (or your use of all or any of the Developer Platform) immediately if we believe you have violated these Terms, if we believe the use of Your Applications with the Developer Platform is not in our or our users’ best interests, if we cease to offer the Developer Platform or as required by Laws.
Upon termination of these Terms:
All rights and licenses granted to you will terminate immediately and you must stop using all SmarterU Materials (unless you have a separate right to use them under another agreement with SmarterU);
You must permanently delete all SmarterU Confidential Information and any other data which you stored pursuant to your use of the Developer Platform (other than User Data you have received and are using in accordance with Clause 5.1) and, at SmarterU’s request, you will confirm such destruction; and
Clauses 5 (Your Responsibilities) through 12 (General) will survive.
11. Modifications to Terms
We may modify these Terms or any additional terms that apply to the Developer Platform occasionally, for example, to reflect changes to the Law, changes to the Developer Platform or for other reasons in our discretion.
Changes specific to new functionality for the Developer Platform, changes made for legal reasons, and any changes to our Documentation or referenced policies will be effective immediately. You may be required to accept the modified Terms in order to continue using the Developer Platform, and in any event you agree that your continued use of the Developer Platform after the changes become effective constitutes acceptance of the modified terms. Except as set forth in this Clause 11, all amendments must be in writing and signed by both parties.
Entire Agreement; Waiver; Severability; Interpretation; Assignment; Remedies.
These Terms do not create any third party beneficiary rights. If you do not comply with these Terms, and SmarterU does not take action right away, this does not mean that SmarterU is giving up any rights that it may have (such as taking action in the future). If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. In these Terms, “including” (and similar terms) are to be construed without limitation, and headings are for convenience only.
You may not assign these Terms, in whole or in part, without SmarterU’s prior written consent, and any assignment without such consent is null and void. SmarterU may assign, transfer or delegate these Terms in its discretion. You acknowledge that your breach of these Terms may cause irreparable harm to SmarterU, the extent of which would be difficult to ascertain.
Accordingly, you agree that, in addition to any other remedies to which SmarterU may be legally entitled, SmarterU will have the right to seek immediate injunctive relief in the event of a breach of these Terms by you or any of your officers, employees, consultants, or other agents.
Governing law and jurisdiction:
Any account at law or in equity arising under these Terms will be conducted (i) in the Courts of Manitoba, Canada should the Developer have its principal place of business in Canada, or (ii) in the Courts of Delaware, U.S. for all other Developers. The parties hereby consent and submit to the exclusive personal jurisdiction of such courts for the purposes of litigating any such action.
If either party waivesIn interpreting these Terms, the parties agree that the laws of the filing jurisdiction shall govern. any breach of this Agreement, this will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
In the event a party provides written notice to the other party of any controversy, claim, dispute, difference, or misunderstanding between the parties arising out of or relating to these Terms, each party shall designate managers to meet within ten (10) business days and negotiate in good faith in an attempt to reach a written resolution.
If the parties are unable to resolve the matter through good faith negotiations within ten (10) business days of such meeting, the parties shall, within five (5) additional business days, jointly prepare a written position statement which summarizes the unresolved issues and each party’s proposed resolution.
Such position statement shall be delivered to each party’s responsible senior executive for resolution within (5) business days. In the event that any matter arising hereunder is not resolved within the specified time periods, each party shall be entitled to pursue any and all remedies that are available to it at law or equity.
In the event of a dispute arising out of or relating to these Terms, each party shall continue to perform its respective obligations hereunder as long as the other party is attempting to resolve the dispute in good faith and such other party is not in material breach of these Terms.
WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. IN ADDITION, YOU AGREE WITH SMARTERU TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE WITH SMARTERU THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.