Development Platform Terms of ServiceLast revised on March 14th 2016
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We’re excited that you’ve chosen to use the Optimizely development platform (the “Development Platform”). These Optimizely Development Platform Terms of Service (these “Terms”) are a binding agreement between Optimizely, Inc. (“Optimizely”, “we” or “us”) and you (“you” or “Platform User”). If you are agreeing to these Terms as an individual on behalf of your company, then “you” or “Platform User” means your company and you are binding your company to these Terms. You represent and warrant that you have the legal power and authority to enter into these Terms and that, if Platform User is an entity, these Terms are entered into by an employee or agent with all necessary authority to bind that entity to these Terms. Optimizely may modify the Development Platform, these Terms and the Developer Guidelines as described in Section 12 (Changes), so you should make sure to check this page from time to time. By accepting these Terms (through click-through or other means) or by using or accessing the Development Platform, you agree to be bound by these Terms.
These Terms are effective as of March 14, 2016, including for users subject to the prior API Terms (available here).
1.1 Scope of Terms. Optimizely’s Development Platform may be used by Optimizely customers and developers alike. It permits Platform Users to use Optimizely’s APIs (“APIs”) to interface with Optimizely’s software-as-a-service products (“Optimizely Services”) (including to to read, access, transmit and manipulate data) and otherwise manage Optimizely Services account. It also permits developers to build applications, integrations, add-ons and online-products that interface with or run on the Optimizely Services (the “Developer Products”).
1.2 Platform Tools. The “Development Platform” includes: (a) any testing and demo accounts for the Optimizely Services (“Developer Accounts”); (b) any of Optimizely’s APIs, software development kits (“SDKs”) and sample code (“Sample Code”); (c) any other Development Platform features such as OAuth 2.0 support and Optimizely Canvas; and (d) related guidelines and access keys. Optimizely also makes available the Optimizely Developer Guidelines (“Developer Guidelines”), which include documentation, directions, guidelines and additional terms for use of various portions of the Development Platform. The Developer Guidelines are currently available at developers.optimizely.com/.
2 Development Platform Use.
2.1 Registration and Approval. You agree to follow the registration or credentialing requirements (if any) established by Optimizely for access to the Development Platform. Any passwords, access keys and other access credentials (including API tokens and OAuth credentials) provided to you are Optimizely’s Confidential Information (defined below) and may not be shared with third parties.
2.2 Your Use Rights. Subject to these Terms, you may use the Development Platform solely for the purposes described in Section 1.1 (Scope of Terms), but only as permitted by these Terms, the then-current Developer Guidelines and any applicable Development Platform documentation. This includes the right to use the Development Platform to interface your online products with the Optimizely Services, but you may not distribute other Developer Products (such as applications or add-ons) to third parties unless separately agreed to by Optimizely in writing.
2.3 Developer Account. **If you create a Developer Account, your use of that account is limited to: *(a)* internal testing of or training with the Optimizely Services (alone or when used with Developer Products); and/or (b) demonstration of the Optimizely Services to potential end customers.** Developer Accounts are for limited, non-production use only. You must use Developer Accounts with fabricated data (“dummy data”) only, unless otherwise mutually agreed in a separate signed writing. You may not use a Developer Account to run live tests of – or collect data about third party visitors to – your own or any third party’s websites, applications or online properties. Without limiting the rest of this Section 2.3, any content or data that you provide Optimizely with (or collect) using a Developer Account is “Developer Data”. Optimizely may use Developer Data to provide the Developer Accounts to you and as described in Section 7 (Aggregate and Anonymous Data).
2.4 Limited Use Rights; Use by Contractors. All of the rights and licenses granted to you under these Terms are limited, non-exclusive, non-sublicenseable, revocable and non-transferable. You may, however, permit your agents, employees and contractors to exercise your use rights on your behalf, provided you remain responsible and liable for their compliance with these Terms. From time to time, Optimizely may monitor your and other users’ usage of the Development Platform and may place limits on access to the Development Platform or Optimizely Services (e.g., limits on numbers of calls or requests made through APIs), either generally or with respect to you specifically. You agree to comply with these limits.
2.5 Open Source Software. The Development Platform may contain or be provided with components that are subject to the terms and conditions of “open source” software licenses (“Open Source Components”). To the extent required by the license that accompanies the Open Source Components, the terms of such license (including, without limitation, any provisions governing access to source code, modification or reverse engineering) will apply in lieu of these Terms with respect to those Open Source Components only.
3 Use of Marks. Unless otherwise mutually agreed by the parties, Optimizely may (but is not obligated to) use your name, logos and other trademarks (including those related to the Developer Products) to identify you as an Optimizely developer and to promote your Developer Products and Optimizely Services. This use may include identifying your Developer Products through add-on platforms, marketplaces or the Optimizely Services themselves. Optimizely receives no other rights to your trademarks under these Terms. All goodwill arising from use of your trademarks belongs to you. Under these Terms, you may not use Optimizely’s name, brand or other marks.
4 Your Responsibilities.
4.1 Restrictions. You agree to comply with Optimizely’s Acceptable Use Policy, currently available at https://www.optimizely.com/acceptable-use-policy (“AUP”) (as may be modified from time to time). You agree not to (or allow anyone else to): (a) use the Development Platform except with the related Optimizely Services; (b) modify, reverse engineer or create any derivative works of any elements of the Development Platform (except for Open Source Components, as permitted by the applicable open source license, and Sample Code); (c) copy, mirror, frame or display any elements of the Development Platform or Optimizely Services through your Developer Products, or use the Development Platform with Developer Products that substantially replicate the features or functionality of the Optimizely Services; (d) distribute, sell, sublicense, rent or lease any element of the Development Platform or the Optimizely Services or use them for hosting, service provider or like purposes; (e) transmit any viruses, worms, malware or other harmful code to, or using any portion of, the Development Platform; (f) access the Development Platform for competitive purposes or analysis; (g) interfere with the proper working of the Development Platform or Optimizely Services, break, circumvent or compromise the Development Platform’s or Optimizely Services’ integrity or security, or decipher any transmissions to or from Optimizely servers; (h) take any action that would subject the Development Platform or Optimizely Services to any third party terms, including without limitation any “open source” software license terms; (i) make any calls to the Development Platform or Optimizely Services that are not driven by a request from an end user (as described in Section 4.2) or as part of reasonable testing of your Developer Product with the Development Platform (and then only the number of calls that a human can reasonably product in the same period of time); (j) access any data or information using the Development Platform except for data in your own instance of the Optimizely Services or as otherwise permitted by these Terms; or (k) disseminate performance information (including uptime, response time and/or benchmarks) relating to the Development Platform or the Optimizely Services.
4.3 Your Representations and Warranties. You are solely responsible for your use of the Development Platform and your Developer Products, Developer Data and any other data or content that you use with the Development Platform. You represent and warrant that: (a) you have full power and authority to enter into and perform these Terms; (b) neither your Developer Data nor Developer Products will violate any third party rights (including intellectual property rights and rights of privacy or publicity) or any laws, rules, regulations or orders, including those relating to data privacy, data transfer, international communications or the export of technical or personal data (“Laws”); (c) all information you provide to Optimizely is and will be true, accurate and complete; and (d) Developer Products will not transmit any viruses, worms, malware or other harmful code.
4.4 Indemnification. You will indemnify and hold harmless Optimizely and its affiliates and their respective directors, officers, employees, agents and contractors from and against any third-party claims, losses, costs, expenses (including reasonable attorneys’ fees), damages or liabilities based on or arising from: (i) your use of the Development Platform, (ii) your Developer Data or Developer Products; or (iii) your breach or alleged breach of these Terms. At Optimizely’s request, you also agree to defend Optimizely against any such claims, but Optimizely may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense and settlement. You may not settle a claim without Optimizely’s prior written consent (not to be unreasonably withheld).
5 Optimizely Technology. For clarity, nothing in these Terms assigns ownership of your Developer Products or intellectual property rights to Optimizely. Optimizely and its third party licensors retain all ownership and other rights in the Development Platform and the Optimizely Services, including all intellectual property rights. Providing suggestions, comments, improvements, information, ideas or other feedback or related materials to Optimizely (“Feedback”) is wholly voluntary. By providing Feedback, you hereby grant Optimizely a worldwide, perpetual, irrevocable, sublicenseable (through multiple tiers), royalty-free right and license to use, copy, disclose, license, distribute, modify and otherwise exploit the Feedback in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise.
6 Independent Development. Our relationship with you is non-exclusive. Optimizely works with many product and service providers and nothing in these Terms nor your development with the Development Platform limits Optimizely’s rights to develop or acquire any products, technology or services, even if similar to or competitive with Developer Products or your other products or services.
7 Aggregate and Anonymous Data. Optimizely may aggregate Developer Data with other data so that results are non-personally identifiable with respect to Developer and may also collect anonymous learnings, logs and data regarding use of the Development Platform and Optimizely Services (“Aggregate/Anonymous Data”). Optimizely owns all Aggregate/Anonymous Data and may use it for any business purpose during and after the term of these Terms, including to develop and improve the Development Platform and/or Optimizely Services and to create and distribute reports and other materials.
8.1 Optimizely Confidential Information. Optimizely may provide certain information to you that is confidential or proprietary (“Optimizely Confidential Information”). Optimizely Confidential Information includes: (a) the Development Platform and the Optimizely Services (including any pre-release information and any non-public software or code); and (b) anything identified or marked as "Confidential" or “Proprietary” or that you should reasonably understand to be confidential or proprietary under the circumstances. You may use Optimizely Confidential Information only for the purposes of these Terms and must protect this information using at least the same measures as for your own information of a similar nature, and no less than reasonable care. You may not disclose any Optimizely Confidential Information to third parties, other than your employees, agents and advisors with a need to know. If you disclose Optimizely Confidential Information to anyone, you agree to remain responsible and liable for their compliance under these Terms. The confidentiality obligations under this Section 8.1 do not apply to information that you can demonstrate: (i) is or becomes public knowledge through no fault of Platform User; (ii) you already knew prior to receipt of the Optimizely Confidential Information; (iii) you rightfully obtained from a third party without breach of any confidentiality obligation; or (iv) you independently developed without using or referencing the Optimizely Confidential Information. If you are compelled by law to disclose Optimizely Confidential Information, you must provide Optimizely with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if Optimizely wishes to contest the disclosure. The parties acknowledge that disclosure of Optimizely Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section Optimizely is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
8.2 Your Confidential Information. You should not disclose any information to Optimizely that you consider to be confidential. To avoid any potential confusion, you agree that any unsolicited information you provide to Optimizely in relation to the Development Platform or Optimizely Services (including any modifications to Development Platform components you provide or publish) is not subject to any confidentiality obligations or use restrictions, and that Optimizely may use it under the same terms as for Feedback above. However, if you have entered into a separate non-disclosure agreement (NDA) with Optimizely addressing your confidential information that agreement will continue to apply with respect to its subject matter.
9 Termination. These Terms remain in effect until terminated. Platform User may terminate these Terms at any time by providing written notice to Optimizely and ceasing all use of and/or access to the Development Platform and deleting any relevant access keys and credentials. Optimizely may terminate these Terms for no reason or any reason upon ten (10) days’ notice to you. Optimizely may also suspend your use of the Development Platform, remove any Developer Data or terminate these Terms immediately if you breach these Terms, if Optimizely is required to do so by Law, if Optimizely ceases to offer the Development Platform or if Optimizely determines that continuing under these Terms could result in legal or business liability or cause harm to its or others’ products, services, reputation or users. Upon any termination, your rights and licenses to use the Development Platform will immediately terminate and you must cease all such use, but all other provisions of these Terms will survive. You understand that after termination you will have no further access to the Development Platform or any Developer Data, and you must delete any Optimizely Confidential Information and other Development Platform materials in your possession (including related access key and credentials). Optimizely will have no obligation or liability resulting from termination or suspension as permitted above.
10 Disclaimers. THE DEVELOPMENT PLATFORM AND ALL OPTIMIZELY SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. OPTIMIZELY AND ITS THIRD PARTY LICENSORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. OPTIMIZELY MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE (A) RELATED TO RELIABILITY, ACCURACY, OR COMPLETENESS OF THE DEVELOPMENT PLATFORM OR ANY OPTIMIZELY SERVICES, (B) THAT OPTIMIZELY WILL CONTINUE TO OFFER THE DEVELOPMENT PLATFORM OR (C) THAT USE OF THE DEVELOPMENT PLATFORM OR ANY OPTIMIZELY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS. OPTIMIZELY DOES NOT WARRANT OR SUPPORT DEVELOPER PRODUCTS OR ANY RELATED CONTENT, DATA OR MATERIALS AND DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR THESE ITEMS AND THEIR ACCESS TO THE OPTIMIZELY SERVICES, INCLUDING THEIR MODIFICATION, DELETION, DISCLOSURE OR COLLECTION OF DATA. THE DISCLAIMERS IN THIS SECTION 10 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST TERM AND MAXIMUM EXTENT PERMITTED BY LAW.
11 Limitations of Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL OPTIMIZELY BE LIABLE: (A) FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR (B) WITHOUT LIMITING THE FOREGOING, FOR ANY DAMAGES OR LIABILITIES EXCEEDING ONE HUNDRED U.S. DOLLARS ($100). THIS SECTION 11 WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS AND THE DEVELOPMENT PLATFORM, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THESE TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. You acknowledge and agree that this Section 11 reflects a reasonable allocation of risk and that Optimizely would not enter into these Terms without these liability limitations. The laws in some jurisdictions may not allow some of the limitations of liability in this Section. If any of these laws is found to apply to these Terms, this Section 11 shall apply to the maximum extent not prohibited by these laws.
12.1 Platform Changes. Optimizely may add, remove or change Development Platform features (or discontinue the Development Platform) in its discretion. Future Development Platform versions may not be compatible with Developer Products developed using previous versions. Optimizely typically makes these changes as part of its overall Development Platform program and is unable to provide notice of the changes to you individually. Optimizely will have no liability resulting from the actions described in this paragraph
12.2 Changes to Terms. Optimizely may modify these Terms and/or the Developer Guidelines from time to time and will use reasonable efforts to notify you of modifications as provided in Section 13 (Notices). You may be required to click through the modified Terms to show your acceptance and in any event your continued use of the Development Platform after the modification constitutes your acceptance to the modifications. If you do not agree to the modified Terms, your sole remedy is to terminate your use of the Development Platform as described in Section 9 (Termination).
13 Notices. Notices must be in writing and will be deemed given when delivered. Optimizely may deliver notice to the email or physical address you provided or through Optimizely’s website. You must send any notices under this Agreement (including breach notices) to Optimizely at the following address, firstname.lastname@example.org, and include “Attn. Legal Department” in the subject line.
14 Contract Mechanics and Interpretation. These Terms are the parties’ entire agreement and supersede any prior or contemporaneous agreements and communications relating to the Development Platform. If you have a separate agreement with Optimizely (for example, if you use Optimizely Services as a customer without using APIs or you are distributing Developer Products through Optimizely’s add-on platform), such agreement will continue to apply to its subject matter, but these Terms will control with respect to use of the Development Platform. Except as set forth in Section 12 (Changes), all amendments or modifications must be in writing and signed by both parties. The words “including” and similar terms are to be construed without limitation. Failure to enforce any provision is not a waiver and all waivers must be in writing. If any provision is found to be unenforceable it (and related provisions) will be limited to the minimum extent necessary so that these Terms may otherwise remain in effect.
15 General. These Terms will be governed by and construed in accordance with the laws of the State of California, excluding conflicts of law rules and principles. Each party submits to the personal and exclusive jurisdiction of the federal or state courts for Santa Clara County, California. You may not assign, transfer or delegate any right or obligations under these Terms and any non-permitted assignment is void. Optimizely may assign these Terms and its rights and obligations to any of its affiliates or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities to which these Terms relate. The parties are independent contractors and these Terms do not create any agency, partnership or joint venture. Optimizely will not be liable to you for any delay or failure to perform any obligation under these Terms if the delay or failure is due to unforeseen events that are beyond its reasonable control. The Development Platform and the Optimizely Services are commercial computer software and were developed fully at private expense. If the user or licensee of such technology is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of such technology, or any related documentation of any kind, including technical data and manuals, is restricted by these Terms in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. All other use is prohibited. Except where these Terms specify an exclusive remedy, all remedies, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party. You agree to comply strictly with all U.S. and foreign export laws and regulations. You further represent and warrant that you are not located in a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and that you are not listed on any U.S. government list of prohibited or restricted parties.