Restb.ai Services – Terms of Service
Effective Date of Current Terms: July 1, 2017
Restb.ai (Mercurio Platform SL) is the owner and operator of the products, platforms, software, plugins, analytics and tools available at https://restb.ai (“Restb.ai API”), including certain cloud-based object recognition services, software development kits (SDKs), application program interfaces (APIs) and API calls, and any other content, program, software, application, libraries, content files, scripts, instruction sets, knowledge base, updates (including software maintenance, service information, help content or bug fixes), components, support service and any related documentation (collectively the “Services.”)
The term Restb.ai (and/or “we” and/or “us”) as used herein means:
- Mercurio Platform, SL, a Spanish company with offices at C/ Doctor Auguet Canonge 85 3º,2ª Viladecans, Barcelona 08840, Spain and tax number ESB66397175, if you are purchasing the Services from any territory or jurisdiction.
YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES IN ANY WAY, BY CREATING AN ACCOUNT WITH OUR SERVICES OR BY CONSUMMATING A FINANCIAL TRANSACTION VIA OUR SERVICES, YOU ARE AFFIRMING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE WEBSITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES
If you are agreeing to these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and affiliates. In that case, the terms “you” or “your” shall also refer to such entity and affiliates. If you do not have such authority, or if you do not agree with the Terms, you may not use the Services. You acknowledge that the Terms constitute a contract between you and Restb.ai, even though they are electronic and not physically signed by you and Restb.ai, and that they govern your use of the Services.
You agree that your access to and use of the Services is subject to these Terms and all applicable laws, and that any such access or use is undertaken at your own risk. If you have any questions about the Terms or any of our other policies, please contact us at email@example.com. Further terms specific to your country may be found in the attached annex (the “Annex”) which is an integral part of the Terms.
- We Reserve the Right to Update and Revise These Terms at Any Time.
From time to time we will review the Terms to ensure they accurately reflect developments in the law and our business operations. We reserve the right to update and revise the Terms at any time. Any new features or tools that are added to the current Services shall also be subject to these Terms. If we do update the Terms, we will notify you here, as well as by doing one or more of the following: 1) posting a notice and link to the updated Terms the next time you log into the Services, at which point you must assent to such updated Terms in order to complete login; posting a pop-up notice and link to the updated Terms on the Website; 3) e-mailing you a notice and link to the updated Terms; or 4) notifying you via RSS feed or pursuant to your user-configured notification preferences in connection with updates to these Terms.
You should review these Terms each time you newly engage with our Services. You will be deemed to have accepted these Terms, as updated, if you continue to use the Services after you receive notice of such updated Terms. We reserve the right to discontinue offering the Services or any part thereof at any time, and current subscriptions may be terminated in accordance with Section 5.
By accessing the Services you affirm that you are fully able and competent to enter into and comply with the Terms. You must be at least 18 years old to access the Services or submit User Content (as defined below) via the Restb.ai API.
You agree that you will not use the Services in any country or in any manner prohibited by European Union or United States export control laws or any other law, restrictions, or regulations that apply to you. You can only use or receive the Services to the extent applicable laws do not bar you from doing so.
By using the Services, you represent and warrant that you meet all eligibility requirements we outline in these Terms. We may still refuse to let certain people access or use the Services. We may also change our eligibility criteria at any time.
We reserve the right, but are not obligated, to further limit the access of our Services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis. All descriptions of Services and pricing terms are subject to change at any time without notice, at our sole discretion, without retroactive effect. We reserve the right to discontinue the offer of Services or any part thereof, and decline renewals for then current accounts, at any time.
By using the Services you understand and agree that Restb.ai may share information about you and your transactions with other companies for processing your payments or other transactions, fraud prevention, and credit card authorization.
- Account Registration and Information.
To use our Services, you are required to create an account. Your access to and use of the Services or aspects thereof are limited by your account type set out in the confirmation form and certain conditions indicated in Exhibits 1 and 2 hereto. You are solely responsible for any activity that occurs through your account. In order for us to provide you the best possible service, you agree to provide us with complete, accurate, and updated information for your account at all times. Incorrect or outdated information may lead to errors or delays, for which we will not be responsible.
You are solely responsible for maintaining the security of your account and login credentials. You should never publish, distribute, or post login information for your account. We are not liable for any damages or loss caused from any unauthorized account actions. For the avoidance of doubt, you are responsible for maintaining the confidentiality of your login, password, and account and for all activities that occur under your login or account, including any consequence resulting from your failure to do so. Please notify Restb.ai at firstname.lastname@example.org immediately if you become aware of any unauthorized use of your account. You may not (a) share your account information (except with an authorized account administrator) or (b) use another person’s account.
Term. Your account shall remain activated and in force for the term indicated in the Restb.ai API confirmation email. The initial term will thereafter be renewed for similar periods unless the account is terminated by you as per below, or we provide thirty (30) days’ prior written notice of non-renewal, unless we otherwise exercise our terminations rights as set forth in Exhibit 2.
Restb.ai Right to Terminate.
- Free trial Accounts: We reserve the right to suspend, block, prevent access to, cancel or otherwise terminate any free accounts with or without cause, in our sole discretion.
- Paid subscriptions: We may terminate at any time on notice to you, providing at least 30 days’ notice, or ending at the end of the next periodic subscription period whichever is earlier.
We also reserve the right to limit or prohibit without notice all activity, including orders or registrations that, in our sole judgment, appear to be malicious or unlawful. We may also suspend or cancel your account/s immediately without notice, in case of breach of these Terms. In the event of termination, your obligations under these Terms will still continue.
Your Right to Terminate. You can terminate your account by emailing us at email@example.com. However, any license granted by you under these Terms shall survive even after your account has been terminated. Termination is automatic upon the expiration of the free “evaluation” period if you have not upgraded to one of the paid account options. Notwithstanding the foregoing, any outstanding payment obligations, and any restrictions, reservations of rights and confidentiality as set forth herein shall remain in full force and effect upon the termination of this Agreement.
- Purchases and Billing Information.
Fees. You agree to pay us the amount identified, in the manner set forth in, the account option you choose upon registration (“Service Order”). We charge and collect in advance subscription fees for use of the Services. On periodic renewal (monthly, annual), you will be charged at the then current Service Order price, unless otherwise agreed in writing with us. Except as expressly set out herein, fees are non-cancellable and non-refundable.
Invoicing. We will issue the invoice for one-off and subscription fees upon acceptance and execution of the online Service Order. Unless the Restb.ai API Services are terminated, renewals are invoiced on the periodic renewal date of the current plan (monthly or annually), and you authorize Restb.ai to bill your payment instrument in advance on a periodic basis in accordance with such terms. We will issue invoices in the currency set out in the Service Order, posted to your account. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the registration was made.
Payment: Unless stated in the Service Order, payment is made by credit card payment. In addition to the termination provisions elsewhere in the Terms, we reserve the right to suspend or terminate this Agreement and access to the Services if you do not pay in timely manner or if you cancel the credit card payment. You warrant you provide us with valid and updated credit card information and you authorize us to charge such credit card for all Services set out in the Service Order for the initial subscription term and renewal subscriptions until termination. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
Disputes: If you dispute any charges you must let us know within sixty (60) days after the date that the charge was incurred. All amounts paid are non-refundable, and we reserve the right to change our prices in the future. If we increase our prices for your service plan, we will provide notice of the change to you at least thirty (30) days before the change is to take effect. Your continued use of the Services after the price change goes into effect constitutes your agreement to pay the changed amount. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
Taxes: You must pay any applicable taxes, and any applicable third-party fee (including, for example, telephone charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, foreign exchange fees). We are not responsible for these fees.
- Availability and Quality.
Although the Services may be accessible worldwide, this does not mean all Services are available for offer in your country, or that all Services, or content contained therein, are legal in your country. We may block access to certain Services (or certain features or content thereof) at any time for any reason. It is your responsibility to make sure your use of the Services is legal where you use them. Services are not available in all languages.
We make no warranties with respect to free evaluation use. With respect to paid subscriptions, we warrant that (i) we shall provide and perform the Services in a workmanlike manner and with professional diligence and skill standard in the industry; and (ii) the Services shall conform substantially to its Technical Documentation (at http://catchoom.com/documentation/) and our knowledge base (articles and FAQ updated from time to time) at the Website. We do not
warrant that the quality of any of our Services, products, information, or other material purchased or obtained by you will meet your expectations, nor make any warranty as to the results that may be obtained from the use of the Services. We do not warrant that the Services will be uninterrupted or error free, however we will endeavor to correct errors in the Services in accordance with our support policy set out below.
We will provide email support to paid subscribers (our office hours are 09:00-18:00 CET, Mon-Fri, except holidays in Barcelona, Spain) for any difficulties or issues raised with respect to the use of, access to, or invoicing and payment for the Services. Free users do not have access to our email support system. Due to maintenance, security or capacity issues, and also to some events over which we may not influence (force majeure, equipment malfunction, power failures, hostile attacks, etc.), the Services may be temporarily suspended or affected.
We shall use our best commercially reasonable efforts to correct any errors and minimize any disruption, inaccessibility and/or inoperability of the Services, whether scheduled or not. We usually provide forty-eight (48) hours advance notice to you in the event of any scheduled downtime. In the event of any downtime, you shall not be entitled to a pro rata reduction of any payments for such period unless the Downtime equals or exceeds five (5) consecutive working days or an aggregate of five (5) working days in any calendar month, in which case paying clients shall be entitled to a pro-rata reduction as their sole and exclusive remedy for such downtime.
We do NOT storage the User Content used to either to train or classifiers or to make predictions.
- Modification of Services.
We may modify or update the Services (including any of their features) at any time without liability to you or anyone else. However, we will make a reasonable effort to notify you before we make the change. We will also allow you a reasonable time to save User Content. By continuing to access or use the Services after we have posted a modification on the Restb.ai API or have provided you with notice of a modification, you are agreeing to be bound by the modified Terms. We reserve the right to discontinue the Services, to terminate at the end of current subscriptions, If we discontinue the Services immediately in their entirety, we will provide you with a pro rata refund for any unused subscription fees for those Services that you may have prepaid (but not one-off payments).
- Restb.ai License.
Subject to your compliance with these Terms and the law, you may access and use the Services. We (and our licensors) remain the sole owner of all right, title, and interest in the Services. We reserve all rights not granted under these terms. In addition, any content that we provide to you is licensed on a personal, non-sublicensable and non-exclusive basis, not sold to you. Our Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws.
- API Use.
In accessing Restb.ai API via our API in any manner, the terms set out in Exhibit 1 and Exhibit 2 below shall also apply and in the event of any inconsistency between these Terms and those set forth in Exhibit 1 and Exhibit 2, the latter terms shall govern.
- User Content.
“User Content” means any data or content you give us, transmit or otherwise make available. User Content includes files you upload, comments or edits you make on files, profile information and anything else you enter or upload into the Services. You retain all rights and ownership of User Content. You are solely responsible for User Content, its accuracy, and for the consequences of submitting or posting User Content. We are not responsible for, and we do not endorse, the opinions, advice, suggestions or recommendations constituting User Content, and we specifically disclaim any liability in connection therewith.
License to User Content. We do not claim any ownership rights to User Content. We do, however, require certain licenses from you, as set forth in these Terms, in order to operate and enable the Services. Your acceptance of the Terms gives us the permission to do so and grants us any rights necessary to provide the Services to you. This permission includes allowing us to use third-party service providers in the operation and administration of the Services, and the rights granted to us are extended to these third parties to the degree necessary. You further authorize us to use on the Website or other websites and on other our marketing collateral, your company name and corporate trademark, linking to your website, for the purpose of publishing the fact that you are a user of these Restb.ai Services. In addition, you also agree that you will consider in good faith participating in and consenting to the release of a Restb.ai case study relating to your use of our technologies and service. We will not release or publish information about you without your prior review and approval.
Restb.ai does not control or endorse the content or data contributed by you. We make no claims or representations regarding any content we do not create. Unless explicitly stated, we do not endorse or have any associations with third-party sites or resources that we may link to on the Services. We take no responsibility related to User Content or third party content or any actions resulting from your use of any part of the Services. If any damage or loss results from your use of, reliance on, or any other connection between you and any content or data that any third party makes available, you acknowledge and agree
that we are not responsible or liable, directly or indirectly. When you access third party resources on the Internet or through the Services, you do so at your own risk.
- Conduct and Misuse.
In addition to any other act that Restb.ai in its sole discretion deems to be misuse, you may not:
- take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third party providers’ infrastructure;
- interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services;
- bypass, circumvent, or attempt to bypass or circumvent, any measures we may use to prevent or restrict access to the Services, including without limitation other accounts, computer systems or networks connected to the Services;
- copy, modify, host, stream, sublicense, or resell the Services;
- enable or allow others to use the Services using your account information;
- use the Services to construct any kind of database;
- access or attempt to access the Services by any means other than the interface we provided or authorized;
- reverse engineer or access the Services in order to (i) build a competitive software product providing a similar service (except when building such service on the Restb.ai Services), (ii) build a product using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services;
- frame or mirror any part or content of the Services;
- use or share content or engage in behavior that violates anyone’s intellectual property rights;
- upload or share any content that is unlawful, harmful, threatening, abusive, tortious, defamatory, libelous, vulgar, lewd, profane, invasive of another’s privacy, or hateful;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- attempt to disable, impair, or destroy the Services;
- use the Services to upload, post, transmit, or otherwise make available any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware;
- publish anyone’s identification documents or sensitive financial information, or any personal information of third parties without their consent;
- manipulate identifiers in order to disguise the origin of any of User Content;
- upload, post, transmit, or otherwise make available any content, that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- use any data mining or similar data gathering and extraction methods in connection with the Services;
- violate any applicable law;
- violate these Terms; or
- collect or store personal data about other users in connection with any of the prohibited conduct and activities set forth above.
These obligations shall survive termination.
You are responsible for your conduct, User Content and all communications with others while using the Services. We are not responsible for the accuracy, appropriateness, or legality of your conduct, User Content or any other information you may be able to access using the Services.
Restb.ai has no obligation to monitor any information on the Services. Nevertheless, you acknowledge that Restb.ai and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any of User Content that is available via the Services. We may also review User Content transmitted through non-public mechanisms (such as non-public channels within the Services) where we deem appropriate, including for violations of the Terms or in response to a user complaint. You must evaluate, and bear all risks associated with, the use of User Content and any other content you submit.
You shall comply with any codes of conduct, policies, storage limitations, or other notices Restb.ai provides or publishes in connection with the Services. You shall promptly notify Restb.ai if you learn of a security breach related to the Services.
- Your Warranty and Indemnification Obligations.
By registering for the Services and uploading User Content or any other content to the Services, you agree that you have: (a) all necessary licenses and permissions, to use, submit, or share such Content and (b) the rights necessary to grant the licenses in these terms. You also represent that such Content and your other activities in connection with the Services, and Restb’s exercise of all rights and licenses granted by you in the Terms, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does such Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, liabilities, loss, expenses or damages, including without limitation reasonable attorneys’ fees, arising out of or related to your User Content, or any other content to the Services, your use of the Services, or your violation of these terms.
- Errors, Inaccuracies, and Omissions.
Occasionally there may be information on the Services that contains typographical errors, inaccuracies or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Services is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend or clarify information in the Services, including pricing information, except as required by law. No specified update or refresh date applied in the Services should be taken to indicate that all information in the Services has been modified or updated.
- Restb.ai Intellectual Property.
Except as otherwise provided herein, the Services and all content appearing thereon are the exclusive property of Restb.ai or our licensors and are protected by international copyright laws. All trademarks, service marks, and trade names that appear on the Services and the overall “look and feel” of the Services (collectively the “Marks”) are proprietary to Restb, or the respective owners of such Marks. You may not display, reproduce, or otherwise use the content or materials on the Services, including the Marks, without first receiving written consent from us. You may not remove or otherwise modify any legal or trademark notices from any content we make available through the Services.
Scraping the Services or using other automated or manual means to take our content is expressly prohibited. Any unauthorized use of any content or materials on the Services is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.
If you would like to request authorization to use the materials or content on the Services, please contact us at firstname.lastname@example.org.
- WARRANTY AND LIABIILITY DISCLAIMER.
You understand and agree that Restb.ai has no control over, and no duty to take any action regarding which your users access the Services, your User Content that they access via the Services, what effects this content may have on them, how they may interpret or use this content, or what actions they may take as a result of their exposure to your User Content.
Thus we make no representations concerning any of your User Content that is uploaded by you and accessed by your users through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in such User Content..
You acknowledge that User Content may be transmitted or handled in an unencrypted manner if you use unencrypted gateways to connect to the Services. While Restb.ai takes measures to ensure that information is transmitted using reasonable security measures, it does not guarantee that those transmissions will be encrypted. You acknowledge that you are solely responsible for adequate security protection and backup of User Content. Restb.ai shall have no liability to you for any unauthorized access or use of any of User Content or any corruption, deletion, or destruction of any of User Content.
ADDITIONAL WARRANTIES AND LIABILITIES DISCLAIMERS ARE SET FORTH IN EXHIBIT 3 HERETO.
Any information marked “confidential”, or which may reasonably be supposed to be confidential, including, without limitation, information contained in or input into the Services, shall not without the our prior written consent be used except for the purposes of this Agreement, nor disclosed to any person other than to employees or agents who have a need to know.
- Governing Law.
Please see the Exhibit 3, attached hereto, as to governing law and dispute resolution.
If any part of these Terms is invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms.
- Entire Agreement.
These Terms constitute the entire agreement between you and Restb.ai and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written with respect to these Services. Any rights not expressly granted herein are reserved.
We are not liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including—without limitation—mechanical, electronic or communications failure, or degradation.
You cannot assign, transfer or sublicense these Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without consent. These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.
If we do not enforce any part of these Terms, it does not mean we give up the right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver.
The section and paragraph headings in these Terms are for convenience only and do not affect their interpretation. Whenever the words “include,” “includes” or “including” are used in the Terms, they shall be deemed to be followed by the words “without limitation. Whenever the word “or” is used in the Terms, it shall not be deemed exclusive. All terms defined in the Terms shall have the defined meanings when used in any of the Terms unless otherwise defined therein. The definitions contained in the Terms are applicable to the singular as well as to the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Whenever the context requires, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms.
To the extent permitted under applicable law, you agree that regardless of any statute or law to the contrary, any claim or cause of action by you related to the Services or the Terms must be filed within one
(1) year after such claim or cause of action arose or be forever barred.
- Contact Us.
If you have any questions, complaints, or claims with respect to the Services or any of the Restb.ai agreements or Terms, you may contact us at email@example.com.
Copyright © 2016. Restb. All Rights Reserved.
- “Query Image”: an image taken by a user with the purpose of recognizing an unknown object
- “Visual Scan”: the process of taking and processing a query image
- “Reference Image”: an image that represents an object in your collection that you want others to recognize
- “Collection”: a group of reference images organized by type
- “Custom Data”: an optional string associated with an item that is returned upon recognition of the item.
- “Transparency”: a term associated with image processing to determine the degree to which an image background is filled with colored pixels
- Query image upload is limited to 300 KB per image. Query images are all images depicting items to be recognized. A request containing a query image to be recognized is called a visual scan.
- Maximum number of visual scans is defined by your pricing plan. Visual scans are all requests containing a query image to be recognized sent through the Recognition API. Performing recognition using the service website or the mobile apps counts as API requests.
- Reference image upload is limited to 5 MB per image. Reference images are all images representing known items. An item can be represented by more than one reference image.
- Maximum number of reference images in all collections is defined by your pricing plan. A collection is a set of known items, each represented by one or more reference images.
- Maximum number of collections is limited only by the number of reference images defined by your pricing plan.
- Custom data (metadata) upload is limited to 2 MB per item. Custom data (metadata) is the data associated with one item. The service permits to include custom data corresponding to all recognized items into responses to successful visual scan requests (i.e. responses with at least one relevant item recognized in the query image
- Supported formats for reference images are: JPEG and PNG (no transparency).
- Supported format for query images is JPEG.
- Recognition API has a limit (request cap) of 20 visual scan requests per second from a single IP address. The excess requests may be discarded and responded with an adequate HTTP status code.
- Recognition API has a limit (request cap) of 3000 visual scan requests in 5 minutes from each account. The excess requests may be discarded and responded with an adequate HTTP status code.
- Management API has a limit (request cap) of 10 requests per second from each account. The excess requests may be discarded and responded with an adequate HTTP status code.
API USE TERMS
- API Definition
Restb.ai has an API: the Cloud Image Recognition API (or “Recognition API”). Unless specified otherwise, Restb.ai API or API refers to the same.
- API Use License
Subject to your compliance with this Agreement, Restb.ai grants you a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted herein) license to use Restb.ai API solely to enable your application to interact with the Services to send and retrieve information necessary to facilitate your permitted use of the Services through your application.
- Access Keys
For API access, you will need to use your CLIENT_KEY as Access Keys that permit you to access Restb.ai API Cloud Service. The CLIENT_KEY must be kept confidential and may be revoked if you share them with any third party (other than as allowed under this Agreement), if they are compromised, if you violate any of these Terms, or if Services to you are terminated for any reason.
- API Call Limitations
The number of API calls you will be permitted to make during any given period may be limited. We will determine call limits based on various factors, including the ways your application may be used or the anticipated volume of use associated with your application. We may, in our sole discretion, charge you for API calls that exceed the call limits or terminate your access to the API in accordance with these terms. The API calls also have service limitations specified in Exhibit 1 above.
Notwithstanding your obligations pursuant to Section 14 of the Terms, above, you further agree not and will not facilitate or enable others to: a) distribute, publish, or allow access or linking to our API or content from any location or source other than your application; b) enable or permit use or disclosure of Restb.ai Services via the API other than as authorized under this Agreement; c) commercialize (that is, sell, rent, trade or lease) Restb.ai to third parties; d) access Restb.ai technology platform for any other purposes other than bona fide use of Restb.ai in accordance with this Agreement; d) modify, decompile, reverse engineer or otherwise alter Restb.ai technology, API or our Services; e) use robots, spiders, scraping or other technology to access or use our technology platform or Restb.ai in general to obtain any information or services beyond what we provide to you under this Agreement; f) use the API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage or otherwise fails to comply or is inconsistent with any reasonable instructions or policy published by us; or g) use the API to: (i) infringe our copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy; (ii) transmit any viruses or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data; or (iii) interfere, disrupt or attempt to use our technology platform to gain unauthorized access to any computer system, server, network or account for which you do not have authorization to access or at a level exceeding its authorization; or (iv) in general create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers.
Notwithstanding Section 5 of the Terms, above, the event of any breach by you of the restrictions set out herein, we will provide you notice of the same, and if it is not corrected within ten (10) days, we may (i) suspend all API access rights and other Services provided to you or, in the event this does not prevent a breach, we may terminate your Restb.ai Services. In the event any such breach causes immediate material harm or significant risks, as determined by us, to our technology platform or Services, we may immediately suspend all API access rights and other services to you, provided that we shall provide you with immediate notice of such suspension. We will resume services when such breach is remedied and all issues related thereto are resolved, without prejudice to our right to terminate this Agreement. In addition, we may suspend or terminate API access (a) if we are required to do so by law; (b) when your Service Order has expired or been terminated; (c) when providing such access to the Services could create a substantial economic burden as determined by Restb.ai in its reasonable good faith judgment; or (d) providing API access to the Services could create a security risk or material technical burden as determined by us in our reasonable good faith judgment
- Modification of the API, Website and Services.
We may modify the API, permitted API calls, our databases, or Restb.ai Services and permitted uses of the same under this Agreement, or any of the benefits and/or features provided in connection with your use of the API. We will provide you one (1) month’s written notice of any such modifications that may affect your Application. These changes may require you to make changes to your application at your own cost to continue to be compatible with or interface with the API or the Services.
- Security Standards
You agree to comply with the following API Security Standards (“Security Standards”):
- Security Breaches. A “Security Breach” is defined as a breach of security of your facility, systems or site where our Services have been accessed or used by an unauthorized person. In the event of a Security Breach, we may suspend or terminate your access to the API and the Services and we may conduct a security audit.
- Notification. Notwithstanding any other legal obligations you may have, you agree to immediately notify us in writing upon your discovery of a Security Breach, using commercial reasonable efforts to do so no more than twenty-four (24) hours after such detection, including: a problem statement, expected resolution time (if known), and the name and phone number of your representative that we can contact to obtain incident updates. Under no circumstances will more than two (2) days pass between your detection of a Security Breach and us being notified by email.
- Audit. We reserve the right to periodically audit your communications with the Restb.ai Cloud Service and systems to ensure compliance with the requirements of these Terms. Non-intrusive network and application security scans may be performed randomly without prior notice.
- Audit Results and Response. We will provide you with detailed results of any security audit performed pursuant to these Security Standards. You will be granted thirty (30) days to resolve any issue that we identify through a security audit. Should you fail to resolve such identified issues, we may immediately suspend or terminate your access to the API and Restb.ai without further notice to you.
EXHIBIT 3 – Additional terms
- A) FOR USERS ACQUIRING THE SERVICES IN THE UNITED STATES
- Copyright Infringement.
Written Notification. Restb.ai has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act (“DMCA”). You are hereby informed that Restb.ai has adopted and reasonably implemented a policy that provides for the termination of access, in appropriate circumstances, to users who are repeat copyright infringers. Restb.ai may, in appropriate circumstances and at its discretion, disable and/or terminate access to users who may be infringing the intellectual property of a third party. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Restb’s DMCA Agent the following information (to be effective, the notification must be in writing and provided to our Copyright Agent):
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and a description of where the material that you claim is infringing is located;
- your address, telephone number, and, if available, email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Upon receipt of a valid written notification containing the information as outlined in 1 through 6 above, Restb.ai shall, (1) remove or disable access to allegedly infringing content; (2) forward the written notification to the alleged infringer; and (3) take reasonable steps to promptly notify the alleged infringer that it has removed or disabled access to the allegedly infringing content.
Counter Notification. To be effective, a counter notification must be a written communication provided to Restb’s DMCA Agent that includes substantially the following:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement, as follows: “I swear under penalty of perjury that it is my good faith belief that the material identified above was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled”; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which you are located, or if your address is outside of the United States, for any judicial district in which Restb.ai may be found, and that you will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a valid counter notification containing the information as outlined in 1 through 4 above, the DMCA provides that the removed material will be restored or access re-enabled and Restb.ai will comply with this requirement within a reasonable time (or as otherwise required by law), provided Restb’s DMCA Agent has not received notice from the original complaining party that an action has
been filed seeking a court order to restrain you from engaging in infringing activity relating to the material on Restb’s network or system.
Except as expressly set out herein, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Restb.ai DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES, OR ANY CONTENT OR DATA ON THE SERVICES, WHETHER PROVIDED OR OWNED BY Restb.ai OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, Restb.ai DOES NOT REPRESENT OR WARRANT THAT THE CONTENT ACCESSIBLE VIA THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS.
LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Restb.ai OR ANYONE REPRESENTING RESTB, INCLUDING ANY THIRD PARTY PROVIDER, BE LIABLE TO YOU UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR (A) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER RESULTING FROM: (I) YOUR ACCESS TO, USE OF, OR RELIANCE ON ANY CONTENT PROVIDED THROUGH THE SERVICES OR ANY ERRORS OR OMISSIONS IN ANY CONTENT; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR THE SERVERS OF Restb.ai OR ITS THIRD PARTY PROVIDERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN BY; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (B) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE FEES PAID TO US FOR THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE PARTIES AGREE THAT THE AMOUNTS STATED HEREIN ARE FAIR UNDER THE CIRCUMSTANCES AND THAT THE PRICES REFLECT THIS LIMITATION OF LIABILITY.
THESE LIMITATIONS APPLY REGARDLESS OF LEGAL THEORY, WHETHER BASED ON TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT Restb.ai WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Governing law, Dispute Resolution, Arbitration and Class Action Waiver
You agree that your use of the Services in another jurisdiction does not give rise to personal jurisdiction over Restb.ai in jurisdictions other than New York. The laws of the State of New York will govern these Terms and the relationship between you and Restb.ai as if you signed these Terms in New York, without regard to New York State’s conflicts of laws rules. If any provisions of these Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent.
This Section includes an arbitration agreement and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the arbitration agreement by following the opt out procedure described below.
Informal Process First. You agree that in the event of any dispute between you and Restb, you will first contact Restb.ai and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
Arbitration Agreement. After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of Restb’s Services, or relating in any way to Restb’s communications with you, will be finally resolved by binding arbitration. This mandatory arbitration agreement applies equally to you and Restb. However, this arbitration agreement does not (a) govern any Claim by Restb.ai for infringement of its intellectual property or access to the Services that is unauthorized or exceeds authorization granted in these Terms or (b) bar you from making use of applicable small claims court procedures in appropriate cases. If you are an individual you may opt out of this arbitration agreement within thirty (30) days of the first of the date you receive any Services by following the procedure described below.
Arbitration is more informal than a lawsuit in court. There is no judge or jury in arbitration. Instead, the dispute is resolved by a neutral arbitrator. Court review of an arbitration award is limited. Except to the extent the parties agree otherwise, arbitrators can award the same damages and relief that a court can award. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Restb.ai are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive any termination of these Terms.
If you wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, you must send a letter requesting arbitration and describing your claim to Mercurio Platform, SL., Attn: Restb.ai Legal, Restb.ai API, C/ Doctor Auguet Canonge 85 3º,2ª Viladecans, Barcelona 08840, Spain. The arbitration shall be administered by the American Arbitration Association (AAA) under its rules including, if you are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If you are not an individual or have used the Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
The number of arbitrators shall be one. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If you are an individual and have not accessed the Services on behalf of an entity, we will reimburse those fees for claims totaling less than $100, unless the arbitrator determines the claims are frivolous, and we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable. However, the preceding sentence shall not apply to the below subsection entitled “Class Action Waiver.”
Class Action Waiver. Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the
arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this class action waiver is found to be unenforceable, then the entirety of the Arbitration Agreement, if otherwise effective, shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and Restb.ai each waive any right to a jury trial.
- B) FOR USERS REGISTERING FOR THE SERVICES FROM OUTSIDE THE UNITED STATES
Warranty limitation. Except as expressly mentioned herein or established by mandatorily applicable law, the Services are provided “as is” and “as available” with no representations or warranties of any kind, either expressed or implied, including but not limited to, the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement. There is no warranty that the Services will be uninterrupted or error free; nor any warranty as to the results that may be obtained from the use of the Services or as to the accuracy, reliability or content of any information or services contained in or provided through the Services. Your sole remedy for breach of our warranty of conformity is re-performance of the Services and/or correction of any bugs in accordance with the support terms set out herein.
Liability limitation. We will only be liable for direct damage to you or your equipment caused by us through your correct use of the service. To the maximum extent permitted by law, in no case is Restb, its affiliates, employees, officers or sponsors responsible or liable for any indirect, incidental consequential loss or damages, including without limitation, damages, loss of profits, loss of business goodwill or reputation, business interruption, equipment failures or other damage or loss arising out of or relating in any way to use of or the inability to use the Services. This limitation does not apply to damage arising due to fraud or willful misconduct, or with respect to death or corporal damage to any person. In no event will either party’s liability under or in connection with this Agreement for any damages, losses and causes of actions, whether in contract or tort (including negligence or otherwise), exceed the actual amount paid by you for Service(s) which gave rise to such damages, losses and causes of actions prior to the date the damage or loss occurred or the cause of action arose. (Some jurisdictions do not allow the exclusion or limitation of warranties or incidental or consequential damages, so that the above limitations or exclusions may not apply to you. In such jurisdictions, the parties’ liability (and the liability of its affiliates, agents, content providers and service providers) shall be limited to the greatest extent permitted by applicable law.)
Applicable Law and Jurisdiction. These Terms shall be governed by and construed in accordance with the laws of Spain. Any dispute arising under these terms and conditions shall be subject to the exclusive jurisdiction of the courts of Barcelona, Spain
Contacts. You agree to receive our email notifications related to Restb.ai and our commercial offerings. We will not share your email with 3rd parties. We may contact you for information and service notifications relevant to your account/s or when required by law. You hereby acknowledge and consent that such notices will be effective upon delivering them to you through e-mail.
Your Data. In registering for the Service and through use of the Service by you and your end users, you and/or they may submit to our systems any User Content containing personal data (“Your Data”), including photographs, images or any metadata, within a Restb.ai database. Under applicable privacy regulations, you are responsible for Your Data and you are what is know under privacy regulation as the “data controller”. You appoint us as a data processor of Your Data, to process Your Data on your behalf (“Data Processor”), for the purpose of providing the Service.
Our obligations as Data Processor: As Data Processor on your behalf, we shall (a) implement appropriate technical and organizational measures to safeguard Your Data against any unauthorized or unlawful access, loss, destruction, theft, use or disclosure; we implement basic security measures set out in Spanish Royal Decree 1720/2007 and no higher level measures are available for the Service; (b) limit access to Your Data only to those employees who need to know it to enable us to perform the Services, and shall take appropriate steps to ensure the reliability of those of its employees or subcontractors who have access to Your Data; (c) only process the personal data as specified by these Terms and in accordance with your instructions, and (d) will not use Your for any purposes other than those related to the performance of the Services or pursuant to your written instructions. Upon the expiry or termination of this Agreement by way or de-registration, or upon request of the Customer, cease any and all use of Your Data and will destroy or return it to you. We will not disclose Your Data to any third party without your prior written consent of the Customer, except as part of performing the Services for your end users.
Subcontracting. As Data Processor we may provide access to a subcontractor processor to Your Data if we reasonably consider such access and processing necessary to the performance of the Services. In the event of such access and before the access takes place, we shall ensure that an agreement with the third party is in place which is sufficient to require it to treat personal data in accordance with the applicable provisions of this Agreement and applicable. You authorise us to subcontract such processing in your name, our current sub-processors, being Amazon Web Services, Inc. (with servers in the EU and in the USA), for the purpose of delivering your content (images and metadata) to your end-users using their global Content Delivery Network.
Assistance. We shall provide you with reasonable assistance in the event that you receive a request from an individual or regulator under data protection laws, provided that you shall first use all reasonable endeavours to resolve the request without our assistance. We shall promptly notify you of any such request received that should properly have been addressed to you.
Your Warranties. You warrant that you have all the appropriate consents from data subjects whose personal data are submitted to us by you or your end-users in the course of the provision of the Service, including consent to the transfer and processing of Your Data to and in the USA by the subcontractor mentioned above. You will indemnify and keep us harmless from all claims, damages and losses we may suffer relating to or arising out of the processing of third party personal data submitted to our systems during the course of the provision of the Service.
Prohibited data. In all events, it is forbidden to submit to us or upload to the Restb.ai Cloud Service any data that contains sensitive data (according to Spanish Privacy Law 15/1999 as detailed in this unofficial English language translation available at: http://mediterjuridico.es/wp-content/uploads/pdf/lopd/Ley_Orgnica_15-99_ingles.pdf?3174ab) that relates to identifiable persons such as: your and or third party’s racial origin, membership in a trade union, religion, ideology and sexual life, your and or third party’s health; or your and or third party’s relative to the commission of criminal offences or proceedings and associated penalties or fines.