SIKKA SOFTWARE CORPORATION
API AND DATA LICENSE AGREEMENT
TERMS AND CONDITIONS
These terms and conditions apply to any document or agreement (“Agreement”) made by and between Sikka Software Corporation (“Sikka”), a Delaware corporation, and its licensee (“Licensee”) that incorporates these terms and conditions by reference. References to the “Agreement” include these terms and conditions. The effective date of the Agreement is referred to herein as the “Effective Date.” The order form, cover page or other document or agreement that incorporates these terms and conditions by reference is referred to as the “Order Form.”
- “API Data” means the Sikka Platform Software data and information more fully identified or described on the Order Form.
- “API Documentation” means the documentation and information that Sikka provides under this Agreement regarding the use of the Licensed API.
- “App” means a Licensee-branded software application, website or product that uses the Licensed API to obtain and use the API Data, more fully identified or described on the Order Form.
- “Confidential Information” means any non-public information of either of the parties disclosed under this Agreement that the recipient knows or reasonably should know is confidential to the discloser.
- “Licensed API” means Sikka’s proprietary application programming interface that enables a software application to access and display the API Data.
- “Licensed Materials” means the Licensed API and API Data.
- “Sikka Platform Software” means the Sikka “SPU” software.
- “Practice Location” means each physical office or location in which either the Licensee installs the Sikka SPU or Sikka installs the Sikka SPU on behalf of the Licensee. Sikka’s support fees under this Agreement are determined by multiplying the number of Practice Locations by the number of Apps.
- “Customer” collectively means practice location and all providers associated with that location. Upon installation, Customers become joint Sikka and Licensee customers for business associate agreement, HIPAA compliance and marketing/co-marketing purposes
- “Sikka Support Portal” means Sikka’s software online administrator.
2. ACCESS TO SIKKA API.
- Your Applications Subject to the restrictions below, limited license to access our APIs and documentation only as necessary to develop, test and support an integration of your application (an “Application” or “App”) with the Services. You may charge for your Application; however, you may not sell, rent, lease, sublicense, redistribute, or syndicate access to any of our APIs.Here Are the Rules :
Your license to access our APIs and documentation is limited and subject to compliance with the Sikka API Developer Policy and Guidelines. Further, you will not:
(A) access our APIs or documentation in violation of any law or regulation;
(B) access our APIs in any manner that (i) compromises, breaks or circumvents any of our technical processes or security measures associated with the Services, (ii) poses a security vulnerability to customers or users of the Services, or (iii) tests the vulnerability of our systems or networks;
(C) access our APIs or documentation in order to replicate or compete with the Services;
(D) attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of our APIs or Services;
(E) attempt to use our APIs in a manner that exceeds rate limits, or constitutes excessive or abusive usage.
3. LICENSE GRANTS.
- License. Subject to the terms and conditions of this Agreement, Sikka hereby grants to Licensee a limited, non-exclusive, non-transferable license to (a) use internally the API Documentation and Licensed API for the sole purpose of developing the App, (b) incorporate the Licensed API with an App, and (c) use the Licensed API, as incorporated within an App, for the purpose of accessing, analyzing and receiving the API Data and otherwise accessing, receiving and utilizing information available from the Sikka Platform Software.
- Authorized Users. Licensee shall identify to Sikka the Licensee employees that will be provided password protected access to the Sikka Support Portal (the “Authorized Users”). For any prospective Authorized User that is not a Licensee employee, Licensee shall, prior to allowing the prospective Authorized User access to the Sikka Support Portal, have the person or entity sign an agreement with Licensee containing an equivalent level of protection for Sikka and its intellectual property as this Agreement (the “Access Terms”). Without limitation, the Access Terms must contain provisions that (1) provide the employee may only use the Sikka Support Portal solely for the Licensee’s internal business purposes and only for the benefit of the Licensee, (2) disclaim all express and implied warranties on behalf of Sikka, (3) disclaim and exclude all liability on the part of Sikka for direct, indirect, consequential, incidental and special damages, (4) prohibit the copying, modification, reverse engineering, decompiling and disassembly of Sikka’s software, and (5) the prospective Authorized User’s access to the Sikka Support Portal will terminate upon any termination, expiration or cancellation of this Agreement. Licensee is responsible for compliance by each Authorized User with the terms of this Agreement and the Access Terms.
- Restrictions. Use of the Licensed Materials is subject to any restrictions indicated in the Order Form, which may include, without limitation, restrictions on the number of APIs that may be utilized, the number of Applications, the number of Practice Locations, and the amount of data that may be accessed per day through the Licensed API and the refresh frequency of the Licensed Data, and restrictions on the number of Authorized Users and number of practices included in the base fee for the Licensed Materials.
- Prohibitions. Licensee shall not, directly or indirectly, do, nor permit anyone to do, any of the following: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of any of the Licensed API or any other Sikka software; (ii) transfer, sublicense, distribute, re-transmit, disseminate, re-sell, loan, lease, share, give, or otherwise make available in any format the Licensed API on a stand-alone basis or as part of any software application other than an App, (iii) make available or provide the API Data to any third party as a reseller, service bureau, service provider or similar basis, (iv) modify or create derivative works (as defined under U.S. Copyright laws) based on any of the Licensed API or any related documentation; (v) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Licensed API; (vi) use the Licensed Materials for timesharing or service bureau purposes or otherwise for the benefit of any third party; (vii) remove any proprietary notices from any of the Licensed API or any other Sikka materials furnished or made available hereunder; (viii) publish or disclose to third parties any negative evaluation of the Licensed API or related services without Sikka’s prior written consent; or (ix) use any of the Licensed API to develop a similar product or service, or other information resource of any kind (print, electronic or otherwise) or otherwise create or attempt to create a substitute or similar service or product. In addition, Licensee shall not, nor shall Licensee permit any third party to, in any non-transitory manner store or cache the API Data or any other information or proprietary content obtained from or through the Licensed API.
- Registration and API Key. In order to access the Licensed API, Licensee is required to register and provide accurate user identification with a password (“Registration Information”) and to inform Sikka immediately of any updates or other changes to such information. In addition, Licensee must obtain a security key or identifier to use the Licensed Materials and Sikka Support Portal (“API Key”). The API Key is Sikka’s Confidential Information. Licensee agrees to neither share Licensee API Key with any third party nor use an API Key issued to a third party by Sikka. Licensee is responsible for any acts or omissions of any third party that uses the API Key issued to Licensee.
- Sikka will deliver the API Data to Licensee electronically. A party will promptly notify the other if it becomes aware of any unavailability or other problems associated with the Licensed Materials or the Sikka Platform Software.
- Fees and Charges. Licensee shall pay Sikka the amounts specified on the Order Form. The initial payment of the API Fees, Monthly Support Fees and Customization Fees is due within 10 days of the Effective Date. All subsequent payments are due and payable within 30 days of the invoice date. Payment shall be made by check or ACH withdrawal, as instructed by Sikka. All amounts paid are non-refundable. Invoices not paid when due will bear interest at rate of 1.5% per month (18% per annum) or the maximum rate permitted by law, whichever is less, from the due date until paid. Licensee shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments.
- Taxes. Licensee will pay sales, use or similar state or local taxes with respect to the Licensed Materials, Sikka Support Portal or otherwise arising out of or in connection with this Agreement or payments to be made under this Agreement, excluding taxes based on Sikka’s net income.
- As between the parties and except for the license granted by this Agreement, Sikka and its licensors own all right, title and interest, including all intellectual property rights, in and to the API Documentation, Licensed Materials and Sikka Support Portal, and Licensee owns all right, title and interest in and to the App (excluding the Licensed API incorporated therein and any other Sikka software, data or information). All rights not expressly granted to a party by the other are hereby reserved. There are no implied rights.
7. WARRANTY AND INDEMNITY.
- Mutual Warranties. Each party represents and warrants to the other that: (i) it is organized and validly existing under the laws of the state of its formation and has full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (ii) this Agreement is a legal and valid obligation binding upon it and enforceable according to its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity); and (iii) its execution, delivery and performance of this Agreement does not conflict with any agreement, instrument or contract, oral or written, to which it is bound.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SIKKA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SIKKA DOES NOT WARRANT THAT THE API DOCUMENTATION, LICENSED API OR API DATA WILL MEET LICENSEE’S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE API DATA WILL BE UNINTERRUPTED OR THAT THE API DATA OR SIKKA SUPPORT PORTAL WILL BE AVAILABLE AT ANY PARTICULAR TIME OR ERROR-FREE. FURTHER, SIKKA DOES NOT WARRANT THAT ANY ERRORS WITH THE LICENSED MATERIALS OR SIKKA SUPPORT PORTAL ARE CORRECTABLE OR WILL BE CORRECTED, OR THAT ANY OF THE LICENSED MATERIALS OR SIKKA SUPPORT PORTAL IS SUITED OR SUITABLE FOR LICENSEE’S COMPUTERS OR COMPUTING ENVIRONMENT OR THAT ANY OF THE LICENSED MATERIALS OR SIKKA SUPPORT PORTAL WILL NOT CHANGE IN THE FUTURE.
(a) By Sikka. Subject to the limitations of Section 9, Sikka shall defend Licensee from any third party claim, suit or proceeding (“Claim”) alleging that the Licensed API provided to Licensee by Sikka under this Agreement infringes or violates any valid U.S. copyright other U.S. intellectual property right of that third party, and shall indemnify and hold harmless Licensee from all resulting damages, losses, liabilities, settlements, judgments, costs and expenses (including attorneys’ fees, filing fees and expert witness fees). If use of the Licensed API is enjoined, Sikka may, at its option, do one or more of the following: (i) procure for Licensee the right to use the Licensed API, (ii) replace the Licensed API with other suitable services, software or products, or (iii) refund the unearned prepaid portion of the fees paid by Licensee for the affected part thereof and terminate this Agreement. Sikka will have no liability under this Section 6.3 if the Claim is based upon (a) use of the Licensed API in combination with data, software, hardware, equipment or technology not provided by Sikka, if infringement would have been avoided in the absence of the combination, (b) modifications to any of the Licensed Materials not made by Sikka, if infringement would have been avoided by the absence of the modifications, (c) use of any version other than a current release of the Licensed API, as applicable, if infringement would have been avoided by use of a current release, or (d) any action or omission of Licensee for which Licensee is obligated to indemnify Sikka under Section 6.3(b). THIS SECTION 6.3 STATES SIKKA’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION CLAIMS.(b) By Licensee. Licensee shall defend Sikka from any (i) breach of this Agreement by Licensee, its affiliates, employees, agents, successors and assigns; or (ii) Claim arising out of, relating to or based on the provision, processing, access or use of the API Data or Licensed API as contemplated by this Agreement (including, without limitation, any Claim that doing so violates any law or obligation applicable to Licensee), and shall indemnify and hold harmless Sikka from all resulting damages, losses, liabilities, settlements, judgments, costs and expenses (including attorneys’ fees, filing fees and expert witness fees).
(c) Conditions to Indemnity. As a condition to indemnification under this Section 6.3, the indemnified party shall (i) promptly notify the indemnifying party in writing of the Claim, (ii) provide the indemnifying party with sole control of the defense and all related settlement negotiations, and (iii) give information and assistance as reasonably requested by the indemnifying party.
8.TERM AND TERMINATION.
- Term. This Agreement is effective on the date set forth on the Order Form and, unless terminated sooner as provided for herein, will remain in effect for a period of three years (the “Initial Term”). After the Initial Term, this Agreement will continue for successive one year terms unless either party gives written notice to the other party at least 60 days prior to the end of the then-current term of its intent not to renew this Agreement. (The Initial Term and all renewal terms, if any, are collectively referred to as the “Term.”)
- Termination. A party may terminate this Agreement: (i) if the other party materially breaches this Agreement and does not remedy the breach within 30 days after its receipt of written notice of such breach, except that the cure period for non-payment is five days; or (ii) if the other party terminates its business activities or is adjudicated insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. After the Initial Term, a party may terminate this Agreement for convenience at any time upon 60 days’ notice. Notwithstanding the foregoing, Sikka may terminate this Agreement at any time upon notice.
- Effect of Termination. Upon any termination of this Agreement, (a) the rights and licenses granted to each party under this Agreement will terminate, (b) all payment obligations will accelerate such that all amounts which would have been due and payable in the future in the then-current term will immediately become due and payable to Sikka, and (c) each party shall, to the extent practicable, destroy or return to the other party, at the other party’s option, all copies of the other party’s Confidential Information in its custody, possession or control, except that a party may retain a copy of the other party’s Confidential Information for its business records. In the event of destruction, the party destroying the records shall provide a certificate of destruction following request.
- Survival. The definitions and the rights, licenses, duties and obligations of the parties that by their nature continue and survive, including the ownership, warranty, limitation on liability, confidentiality and miscellaneous provisions, will survive any termination of this Agreement.
- Rights of Termination and Non-Renewal. The rights of termination and non-renewal set forth in this Section 7 are absolute, and that the parties have considered the possibility of such termination or non-renewal and the possibility of loss and damage resulting therefrom, in making expenditures pursuant to the performance of this Agreement. Neither party is liable to the other for damages or otherwise by reason of the termination or expiration of this Agreement as provided herein. The parties expressly agree that the notice periods in this Agreement are reasonable under the contemplated circumstances.
- Obligation. Each party agrees, both during and after the term of this Agreement, to hold the Confidential Information of the other party in the confidence and not to use or disclose such Confidential Information to any third party, except as otherwise expressly provided by this Agreement. Each party shall, however, be permitted to disclose relevant aspects of such Confidential Information to its officers, employees, or contractors, all on a need-to-know basis, on condition that such individuals or entities are under obligations of confidentiality that require them to protect the Confidential Information to the same extent as required under this Agreement. Each party shall employ reasonable steps to protect the Confidential Information from unauthorized or inadvertent disclosure or use, including, without limitation, the steps that it takes to protect its own information of like kind. The recipient shall give the discloser notice immediately upon learning of any unauthorized use or disclosure of the discloser’s Confidential Information. The obligations set forth in this Section 8.1 do not apply to any portion of the Confidential Information where the recipient establishes that: (a) the recipient already possessed the information at the time of disclosure (other than the API Data), (b) the recipient received the information in good faith on a non-confidential basis from a third party lawfully in possession thereof; (c) the information was publicly known or available at the time of its receipt by the recipient or becomes publicly known or available other than by a breach of this Agreement or in violation of any confidentiality obligation applicable to such information; (d) the information is independently developed by the recipient without use of, or reference to, the discloser’s Confidential Information; or (e) the rightfully information is provided or made available to a third party free of an obligation of confidentiality. A disclosure of Confidential Information required by applicable statute or regulation or by judicial or administrative process shall not be considered a breach of this Section 8, provided that the recipient notifies the discloser of such requirements at least 15 days in advance so as to provide the discloser the opportunity to obtain such protective orders or confidential treatment or otherwise limit or prevent the disclosure.
- Confidential Nature of Agreement. The parties agree that the terms and conditions of this Agreement shall be treated as confidential information of both parties and shall not be disclosed to any third party; provided, however, that a party may disclose a copy of this Agreement and provide information concerning this Agreement: (i) as required by any court or other governmental body; (ii) as otherwise required by law (including filings to Securities Exchange Commission); (iii) to its own accountants, advisors and legal counsel who have a need to know; (iv) as required in connection with a public offering or securities filing; (v) in confidence, to accountants, banks and financing sources and their advisors in connection with the due diligence review of such party with respect to its prospective debt or equity financing; (vi) in connection with the enforcement of this Agreement or rights under this Agreement or any defenses or claims hereunder (including counterclaims); and (viii) in confidence, in connection with the due diligence review of such party with respect to a bona fide prospective merger, acquisition or proposed merger, acquisition or the like.
10. LIMITATION OF LIABILITY.
- Consequential Damages Waiver. IN NO EVENT WILL SIKKA BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, LOSS OF USE OF SOFTWARE, COSTS OF RECREATING LOST DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SIKKA HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OR ANY LIMITED REMEDY HEREUNDER.
- Cap on Liability. IN NO EVENT WILL SIKKA’S LIABILITY EXCEED THE AMOUNTS PAID HEREUNDER IN THE 12 MONTHS PRIOR TO THE EVENT FIRST GIVING RISE TO THE CLAIM.
- Amendment; Waiver. This Agreement (including the Order Form) may be amended or supplemented only by a writing that is signed by duly authorized representatives of Licensee and Sikka that identifies itself as an amendment to this Agreement. No term or provision hereof shall be considered waived by a party, and no breach excused by a party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by a party to, or waiver of, a breach by the other party, whether express or implied, shall constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by a party.
- Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
- Governing Law. The laws of the State of California govern all matters arising out of this Agreement, without regard to any conflicts of laws principles.
- Assignment. Except in connection with a merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates where the successor or acquirer agrees in writing to be bound by this Agreement, a party may not assign its rights under, nor delegate any performance of, this Agreement without the prior written consent of the other party. Any attempt to do so without such consent is void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.
- Relationship of the Parties. The parties to this Agreement are independent contractors. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
- Construction of Agreement. The parties agree that this Agreement has been fully negotiated and jointly drafted between them and that no rule of construction will be applied against either party in law or equity as the drafter of this Agreement. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole. As used in this Agreement, the words “include” and “including” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by words “without limitation.” In the event of a conflict between this Agreement and the Order Form, this Agreement will control unless the Order Form expressly identifies the specific paragraph and terms of this Agreement, that are being overridden.
- Force Majeure. Except for the payment of money, a party will not be deemed in default of this Agreement to the extent that any delay or failure in the performance of its obligations results from any cause beyond its reasonable control, such as acts of God, acts of civil or military authority, embargoes, epidemics, war, riots, insurrections, fires, explosions, earthquakes, floods, unusually severe weather conditions, failure of suppliers, or acts of terrorism. In the event the delay or failure continues for more than 30 days, the other party may terminate this Agreement upon written notice.
- Export Control. Licensee hereby acknowledges that the Licensed API and API Data are each subject to US export control laws, and hereby agrees to comply with such laws.
- Marketing. Sikka may use Licensee’s name as part of a general list of its API licensees and may refer to those licensees as Licensees of the Licensed Materials in its advertising, marketing and investor materials. Sikka may use Customers’ name(s) and contact information to market its own or approved third-party products and services using its email, direct mail, Sikka SPU messaging and marketplace channels.
- Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.
- Refresh. Licensor defines Near-Real Time refresh as follows: as little as 5 minutes from posted activity.
- Pricing. API pricing is based on the current market conditions. Licensor may update pricing anytime upon demonstrable changes in market conditions, such as pricing dictated or agreements changed by third-party practice management systems. E.g. if a practice management system provider increases their fees to Sikka, Sikka will pass those fees to Licensee in addition to its existing fee.