GENERAL CONDITIONS FOR USE OF THE HYVES API
IMPORTANT NOTICE - READ CAREFULLY
Article 1 - Definitions
For the purposes of these General Conditions, the following capitalised terms will have the following meaning:
1.1 General Conditions: these general terms and conditions for use of the Hyves API.
1.2 Hyves API: the application programming interfaces of Hyves and/or its licensors which are made available to Users through the Website, including all documentation and example code and all modifications thereto.
1.3 Content: all data originating from the Website which are called, processed, stored, published or reproduced using the Hyves Application.
1.4 User: the party concluding a Contract with Hyves.
1.5 Hyves: Startphone Limited, a private limited company having its registered office in Cardiff, United Kingdom, trading under the name of Hyves and also maintaining a place of business at Herengracht 252 in (1016 BV) in Amsterdam, the Netherlands.
1.6 Hyver: a Hyves user.
1.7 Intellectual Property Rights: all intellectual property rights and rights related thereto, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights, neighbouring rights and rights to know-how.
1.8 Hyves Application: the software or code developed by the User for the purpose of integrating with and connecting to the Website using the Hyves API.
1.9 Party: each party to the Contract.
1.10 System: the system on which the Hyves website runs, including the network.
1.11 Website: the Hyves website, including all underlying software applications and software.
1.12 Agreement: the agreement between Hyves and User regarding the use of the Hyves API.
Article 2 - Applicability
2.1 These General Conditions will apply to the User's use of the Hyves API. Stipulations varying from these General Conditions will be valid only if they have been explicitly agreed in writing. In addition to observing the provisions of these General Conditions, the User shall comply with specifications and obligations in respect of the Hyves API, which Hyves will post on the Website from time to time.
2.2 Hyves specifically rejects the applicability of any conditions of the User.
2.3 Hyves will at all times be entitled to amend or supplement these General Conditions. The most recent version of the General Conditions will be available on the Website. By continuing to use the Hyves API after an amendment or supplement to these General Conditions, the User unconditionally accepts the amended or supplemented General Conditions. If the User does not accept the amended or supplemented General Conditions, his only option is to stop using the Hyves API. In that event, the provisions of article 7.5 will apply.
Article 3 - Subject and scope of the right of use
3.1 Hyves hereby grants the User a free limitative, non-exclusive, non-transferable and non-licensable right to use the Hyves API with a view to developing Hyves Applications for commercial (certain restrictions apply) and non-commercial purposes. The User accepts said right of use, all of the foregoing in accordance with the provisions of these General Conditions.
3.2 The User may not sell, lease, sublicense, dispose of, surrender or transfer the Hyves API, copies thereof, the Hyves Applications or the Content to third parties in any form whatsoever, make any of the aforesaid available to third parties in any form whatsoever or grant third parties access to any of the aforesaid, whether or not remotely. The User also may not encumber the Hyves API with any restricted right or contribute it to any company or joint venture. In addition, the User may exploit the Hyves API, the Hyves Application or the Content commercially or use any of the aforesaid for commercial purposes, within certain restrictions and limits as specified here. Hyves will decide whether an act as described above or a commercial purpose is within the limits and restrictions as specified. If the User wishes to use the Hyves API for any of the purposes set out above or for other commercial purposes that are not within specified limits and restrictions, User must send an email to hyves-api[at]hyves.nl in order to get approval.
3.3 The User may, however, sell the Hyves Application or make it available to third parties without the Hyves API and without the applicable Consumer Key and Consumer Secret.
3.5 On demand, the User shall provide Hyves with any and all information about his Hyves Application which Hyves reasonably needs to verify whether the User is acting in accordance with these General Conditions.
Article 4 - Use of the API
4.1 Hyves provides the Hyves API 'as is', insofar as permitted by applicable law. Hyves therefore expressly disclaims any and all explicit and implied guarantees, undertakings and warranties of any nature, including but not limited to guarantees, undertakings and warranties with respect to the quality, security, lawfulness, integrity and accuracy of the Hyves API.
4.2 The User warrants that the Hyves Application:
- does not violate the applicable laws or regulations;
- does not violate these General Conditions;
- is not intended to replace or replicate the service provided by Hyves;
- does not conceal the User's identity or the actual purpose of the Hyves Application;
- does not store or save Content for longer than is necessary to render the service which the User provides by means of the Hyves Application, in which respect Content at any rate will not be stored for more than 24 hours and will not be made available to third parties, with the exception of the fields referred to in the documentation as the 'identification fields' and 'update time fields', which can be stored for an unlimited period of time;
- does not create the impression that there is a commercial or other connection between Hyves and the User;
- is not unlawful in any other respect, whether or not vis-a-vis third parties;
- does not contain any viruses, Trojan horses, time bombs or other malicious code;
- does not prejudice Hyves's interests or damage its good name.
4.3 The User also warrants that the Hyves Applications do not adversely affect, impede, limit or reduce the functionality or use of the Website or the System either directly or indirectly, including but not limited to:
- adversely affecting the stability of the System or the Website;
- adversely affecting the operation of other applications of Hyves; or
- installing spyware, malware or other malicious code on a Hyver's computer or on the System.
4.4 The User warrants that each Hyves Application at any rate contains the following easily legible statement in the help text or other .txt file:
This application uses the Hyves API but has not been developed, certified or otherwise approved on behalf of or on the instructions of Hyves.
4.5 Hyves does not warrant that the Website will be accessible at all times and without interruptions or failures. Failures of the Website may be caused in part, but not exclusively, by failures in the Internet or telephone connection or by viruses or errors/defects. Hyves will not be liable to the User in any way for damage ensuing from or caused by the unavailability of the Website.
4.6 The User warrants that he frequently visits the Website (i) to ensure that he is using the most recent stable version of the Hyves API and (ii) to find out about any amendments to these General Conditions as described in article 2.3.
Article 5 - Intellectual Property Rights
5.1 The Intellectual Property Rights in respect of the Hyves API and all Content are and will remain vested in Hyves, its licensors or Hyvers. None of the provisions of these General Conditions is intended to transfer any of the aforesaid Intellectual Property Rights to the User. The User will be solely entitled to the limitative use of the Intellectual Property Rights as provided in these General Conditions.
5.2 The User shall refrain from performing any act which infringes on, prejudices or jeopardises the Intellectual Property Rights of Hyves, its licensors and/or Hyvers.
5.3 Without prejudice to the provisions of articles 5.1 and 5.2, the User will retain all Intellectual Property Rights in respect of the Hyves Applications, provided that said Hyves Applications do not contain the Hyves API or any part of the Hyves API or Content or their code. The User indemnifies Hyves against any and all claims by third parties (i) based on infringement by Hyves Applications on the rights of third parties, and/or (ii) otherwise related to the User's use of the Hyves API, Hyves Applications and/or Content.
5.4 In addition, the User may include any of the following references to Hyves in his Hyves Application:
- runs in combination with Hyves; and/or
- uses Hyves;
- for Hyves.
5.5 Hyves will provide pictures, trademarks, trade names and logos (referred to below as the 'Trademarks') through its Website that the User may use in the Hyves Applications. The User shall comply with the specifications and obligations posted on the Website in respect of the use of said Trademarks. In addition, the Trademarks may not be used to create the impression that there is any commercial or other connection between the User and Hyves or that Hyves was in any way whatsoever involved in the development and distribution of the Hyves Application.
5.6 The User may not use the term 'Hyves' to name or describe his Hyves Application or any part thereof, including but not limited to 'Hyves [name of the Hyves Application]' or '[name of Hyves Application] on/for Hyves'. In addition, the User may not register the term 'Hyves' or confusingly similar terms as a domain name or trademark or use any of them as a trade name.
5.7 To the best of Hyves's knowledge, the Hyves API does not infringe on the Intellectual Property Rights of third parties and is not unlawful in any other respect.
5.8 The User understands and accepts that Hyves also designs applications independently of the User which may be similar or identical to Hyves Applications. Hyves has the right to develop such applications without incurring any obligations or liability vis-à-vis the User.
Article 6 - Liability
6.1 Hyves will in no event be liable for any property damage, personal injury or consequential damage arising from or related to the use of the Hyves API or the inability to use it, unless it is established at law that Hyves cannot rightfully invoke this provision in the given circumstances of the case, whether or not because this provision is voidable in full or in part.
6.2 The sole action that the User can take if he believes he has suffered damage is to cease the use of the Hyves API.
6.3 The User indemnifies Hyves against any and all claims by third parties on whatever basis in respect of compensation for damage, costs or interest, relating to or arising from the User's use of the Hyves API, including but not limited to Hyves Applications and Content.
Article 7 - Term and termination
7.1 The right to use the Hyves API will continue until it is terminated by either party in accordance with the provisions of this article.
7.2 The User will be entitled to terminate the right of use at any time by ceasing the use of the Hyves API and permanently removing it from his computer.
7.3 The User will be entitled to continue the use of the software and/or code underlying the Hyves Applications, provided it is no longer used in combination with the Hyves API or any Content.
7.4 Hyves will be entitled to terminate or suspend the right of use with immediate effect for any reason whatsoever, without stating reasons, for example if the User violates the General Conditions or if Hyves discontinues the Hyves API service.
7.5 Upon termination of the use of right, the User shall cease and desist from using the Hyves API and the Content and permanently remove them from his computer or other data carriers.
Article 8 - Miscellaneous provisions
8.1 All Contracts will be governed by Dutch law. Any and all disputes arising from or relating to the Contract will only be submitted to the competent court in Amsterdam, unless otherwise agreed in writing.
8.2 To the extent permitted by law, the Dutch Civil Code provision governing general conditions will not apply with respect to the relationship with Users who are established or resident outside the Netherlands.
8.3 If one or more provisions of the Contract and/or these General Conditions are declared void or prove to be invalid, the User and Hyves will continue to be bound by the remaining provisions. In that event, the voided or invalid provisions will immediately be replaced by provisions which are legally valid and whose legal consequences, in view of the substance and purport of the Contract and these General Conditions, correspond as much as possible to those of the voided or invalid provisions.