API License and Terms of Use

This API License and Terms of Use (“API Terms”) is between OrderMyGear LLC (collectively, “Licensor”) and you the user of our API (the “Licensee”). The parties to these API Terms may be referred to as a “Party” or collectively as “Parties.”

These API Terms are effective when Licensee electronically agrees to them or agrees to another agreement that incorporates them by reference.

1. Use of API. These API Terms apply to Licensee’s use of its application programming interfaces, software development kits, and similar software products (collectively, the “API”) which are made available by Licensor to Licensee. 

2. Definitions:

A. “API Credentials” mean an encrypted token, destination URL, client name and other information that allows Licensee to communicate with the API.

B. “Authorized Client” means the entity that Licensor has authorized to use its Services.

C. “Services” shall have the same meaning as in the Terms of Service at https://ordermygear.com/terms/.

3. Licensee hereby warrants and agrees that: 

A. These API Terms are a legally binding agreement and the equivalent of a signed, written contract;

B. Licensee will abide by these API Terms.

C. If Licensee is agreeing to these API Terms on behalf of an entity, Licensee represents and warrants that it has the authority to bind the entity and that it is doing so on behalf of that entity; 

D. Licensee is either itself an Authorized Client or is acting on behalf of an Authorized Client, and that it will not use the API for any other party that is not an Authorized Client 

E. Licensee agrees, on its behalf and on behalf of any Authorized Client, to process any personal information it receives from Licensor in accordance with applicable data privacy laws and, if applicable, pursuant to the instructions of the Authorized Client.

F. If Licensee is accessing the API on behalf of an Authorized Client, it may only do so with the express authorization of the Authorized Client and only for the purposes of providing services to the Authorized Client that are within the scope of the API License.

4. Licensee agrees not to use the API for any of the following:

A. To breach any contract or legal duty.

B. To infringe or violate the trademarks, copyrights, or other intellectual property rights of Licensor or any third-party.

C. To violate or infringe anyone’s privacy rights or any applicable laws or regulations.

D. To create an account on behalf of another party, share the API Credentials with a third-party, or misrepresent themselves or any facts relating to their use of the API to Licensor or its agents.

E. Licensee agrees not to use the API except as permitted by the following API License.

5. API License. Licensor hereby grants to Licensee a perpetual, limited, royalty-free, fully paid-up, revocable, non-exclusive, non-transferable, non-sub-licensable right and license to use the API solely in connection with the creation and use of a software interface between an Authorized Client’s systems to those of Licensor and/or its affiliates (the “API License”).

6. API Credentials. Licensee agrees to use reasonable measures to safeguard the API Credentials and not to share them with any third-parties. 

7. Termination. Licensor may terminate or suspend the API License or API Credentials at any time and for any reason, at its sole discretion. Licensor may also Change or alter the API or API Credentials at any time at its sole discretion.

8. Indemnification.

To the maximum extent permitted by law, you agree to indemnify and hold harmless Licensor, its affiliates, officers, members, owners, directors, managers, employees, agents, and representatives (collectively referred to as “Related Parties”) from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees), arising out of or related in any way to (a) your negligence or willful misconduct; (b) your alleged violation of the API Terms, (c) your alleged violation of any law or regulation, (d) your alleged violation of any intellectual property right, including, without limitation, copyright, patent, trademark or trade secret, (e) your failure to safeguard your API Credentials or the sharing of the API Credentials without authorization. This indemnification obligation will survive the termination of these API Terms or the API License. Licensor reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, and in such case, Licensee agrees to cooperate with Licensor’s defense of such claim. 

9. Disclaimer of Warranties. 

To the fullest extent permissible under applicable law, Licensor does not make and hereby disclaims any express or implied warranties or representations whatsoever with respect to the API and the Services, including but not limited to any warranties of merchantability, non-infringement, and fitness for particular purpose.

We do not make any representation or warranty with respect to the accuracy, reliability, timeliness, or completeness of the API or the Services, including that access to them will be uninterrupted, timely, secure or error-free, or that defects in them will be corrected. Licensor does not guarantee or warrant that the files available for downloading by Licensee will be free from infection by software viruses or other harmful computer code, files, or programs. The API and the Services are provided on an “as is,” “where is, “ “where available” and “as available” basis. 

To the fullest extent provided by law, Licensor will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material due to Licensee’s use of the API or the Services. 

10. LIMITATION OF LIABILITY. YOU WAIVE AND RELEASE LICENSOR, ITS OWNERS, OFFICERS, AFFILIATES, AND/OR EMPLOYEES FROM LIABILITY FOR ANY PAST, PRESENT, OR FUTURE INCIDENTAL, CONSEQUENTIAL, NOMINAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATING TO THESE API TERMS OR THE SERVICES, INCLUDING ATTORNEYS FEES, INDEMNIFICATION, LOST PROFITS, LOSS OF USE, LOST DATA, LOSS OF TIME, INCONVENIENCE, BUSINESS INTERRUPTION, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. YOU AGREE THAT THE ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS BROUGHT AGAINST LICENSOR, ITS OWNERS, OFFICERS, AFFILIATES, AND/OR EMPLOYEES RELATING TO THE SERVICES AND/OR THESE API TERMS, INCLUDING ATTORNEYS’ FEES, SHALL NOT EXCEED $2,500. THIS SECTION SHALL SURVIVE THE TERMINATION OF THE API LICENSE.

11. Dispute Resolution. Other than claims or disputes before an administrative agency (e.g., inter-related parties review of a patent before the United States Patent and Trademark Office), any dispute, controversy or claim arising out of or related in any manner to the API or the Services which cannot be amicably resolved by the Parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof in Dallas, Texas. The arbitration shall take place before a panel of one (1) arbitrator sitting in Dallas, Texas. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of Texas. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. Any claim shall be brought individually on behalf of the person or entity seeking relief, not on behalf of a class or other persons or entities not participating in the arbitration and shall not be consolidated with the claim of any person who is not asserting a claim arising under or relating to this contract. A party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction in Dallas, Texas if in its reasonable judgment such action is necessary to avoid irreparable harm. The arbitrator will make the initial determination as to whether any claim is subject to arbitration. Notwithstanding any language to the contrary in these API Terms, the parties hereby agree that any award issued by the arbitrator (the Underlying Award”) may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”); that the Underlying Award rendered by the arbitrator(s) shall, at a minimum, be a reasoned award; and that the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof. 

12. Miscellaneous Clauses:

(a) Relationship of the Parties. The relationship of the Parties hereto is that of independent contractors. Nothing in these API Terms, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Each of the Parties is an independent contractor and neither Party has the authority to bind or contract any obligation in the name of or on account of the other Party or to incur any liability or make any statements, representations, warranties or commitments on behalf of the other Party, or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of the salaries of its employees and personnel (including withholding of income taxes and social security), workers’ compensation, and all other employment benefits.

(b) Assertion of Claims. Any cause of action that arises from or relates to the Services or these API Terms must be commenced against Licensor within two (2) years from the date it accrues, regardless of when you became aware of the cause of action, or it shall be waived.

(c) Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under these API Terms, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of these API Terms, for so long as such force majeure event is in effect. The party whose performance is impacted by such occurrence (the “Impacted Party”) shall give notice within five (5) days of the occurrence to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such occurrence are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

(d) Governing Law and Venue. These API Terms will be governed by and interpreted in accordance with the laws of the State of Texas, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of these API Terms will be brought solely in Dallas County, Texas. Both Parties hereby submit to the exclusive jurisdiction and venue in Dallas County, Texas. 

(e) Assignment. Licensee may not assign its rights or obligations hereunder, whether by operation of law or otherwise, without Licensor’s prior written consent (not to be unreasonably withheld). Licensee agrees that the Licensor may assign, transfer, or delegate any of its rights or obligations under these API Terms at any time and for any reason without prior notice or your consent. Subject to the foregoing, these API Terms shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

(f) Severability. If any provision or portion of these API Terms shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.

(g) Construction. These API Terms is the result of negotiations between the Parties and their counsel. Accordingly, these API Terms shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.

(h) Survival. Each term and provision of these API Terms that should by its sense and context survive any termination or expiration of these API Terms, shall so survive regardless of the cause and even if resulting from the material breach of either Party to these API Terms.

(i) Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.

(j) Waiver. No waiver of any term or right in these API Terms shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of these API Terms shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of these API Terms thereafter