Last Updated: September 23, 2026
THESE API LICENSE TERMS OF USE ARE ENTERED INTO IN CONNECTION WITH THE SERVICES ORDER FORM TO WHICH THESE API LICENSE TERMS OF USE ARE INCORPORATED BY REFERENCE.
COLLECTIVELY, THE SERVICES ORDER FORM(S) AND THESE API LICENSE TERMS OF USE CONSTITUTE A LEGALLY BINDING CONTRACT AND ARE THE COMPLETE AND ENTIRE AGREEMENT (COLLECTIVELY, THIS “AGREEMENT”) BETWEEN REAL GEEKS, INC., A NEVADA CORPORATION, AND ITS SUCCESSORS AND ASSIGNS (COLLECTIVELY, “REAL GEEKS”) AND THE LICENSEE IDENTIFIED ON THE SERVICES ORDER FORM (“LICENSEE”).
THESE API LICENSE TERMS OF USE ARE INCORPORATED BY REFERENCE INTO AND ARE A PART OF THE SERVICES ORDER FORM. IN THE EVENT OF ANY DIRECT OR INDIRECT CONFLICT BETWEEN ANY SERVICES ORDER FORM AND THESE API LICENSE TERMS OF USE, THESE API LICENSE TERMS OF USE SHALL CONTROL AND SUPERSEDE.
REAL GEEKS MAY MODIFY THESE API LICENSE TERMS OF USE AT ANY TIME. THE DATE OF THE LAST UPDATE TO THESE API LICENSE TERMS OF USE IS SET FORTH ABOVE AND SHOULD BE CHECKED BY LICENSEE PERIODICALLY. REAL GEEKS WILL PROVIDE LICENSEE WITH NOTICE OF ANY UPDATES TO THESE API LICENSE TERMS OF USE, WHICH NOTICE MAY BE PROVIDED ELECTRONICALLY VIA THE SERVICES OR VIA EMAIL. LICENSEE’S CONTINUED USE OF THE SERVICES WILL CONSTITUTE LICENSEE’S ACCEPTANCE OF ALL CHANGES TO THESE API LICENSE TERMS OF USE. IN THE EVENT LICENSEE DOES NOT AGREE TO ANY UPDATES TO THESE API LICENSE TERMS OF USE, LICENSEE SHALL HAVE THIRTY (30) DAYS FROM THE DATE REAL GEEKS PROVIDES NOTICE OF THE UPDATE TO THE API LICENSE TERMS OF USE TO PROVIDE REAL GEEKS WITH A WRITTEN NOTICE OF TERMINATION OF THIS AGREEMENT, IN WHICH CASE THIS AGREEMENT SHALL BE TERMINATED.
SECTION 1.
License to Use API Materials and Real Geeks Services. Subject to the terms and conditions of this Agreement, Real Geeks grants solely to Licensee a non-exclusive, worldwide, non transferable, limited license to use the API Materials and Real Geeks Services (as identified on the Services Order Form) only as necessary to develop, test, and integrate only the Licensee Application identified on the Services Order Form with the Real Geeks Services via the application program interface of the API Materials as specified by Real Geeks (the “License”). No right to sub-license or sub-let is granted under this Agreement. The term “API Materials” means the application programming interface (API) identified in the Services Order Form along with all software developer kits, documentation, API Credentials (as defined below), and any software, materials or data that Real Geeks makes available to Licensee, in its sole discretion. Licensee’s use of the Real Geeks Services under the License is limited to use by Licensee, its employees, agents and contractors (collectively, “Users”). Licensee shall ensure and guarantee that each User complies with all of the terms and conditions of this Agreement, including the warranties and restrictions set forth in Sections 2, 3, 7, 9, 10, 14, 15, 21, 22 and 31. Licensee shall be responsible and jointly and severally liable for the acts and omissions of all Users and their compliance with this Agreement. Real Geeks has no liability for or relating to any disputes between Licensee and any Users. Licensee shall take all steps necessary to protect all User logins and passwords, to safeguard the security and integrity of the Real Geeks Services and API Materials, and to protect against unauthorized access and use. Licensee shall immediately notify Real Geeks of any violation of the foregoing. Any access to the Real Geeks Services using Licensee’s user logins and passwords shall be deemed access by Licensee. All use of the Real Geeks Services must comply with the user policies established by Real Geeks from time to time.
SECTION 2.
API Credentials. To use the API Materials, Real Geeks will provide Licensee with certain credentials to permit access, such as a developer key token (the “API Credentials”). Licensee will only use the API Credentials, and the License only grants the right to use the API Credentials, for the Licensee Application. Real Geeks may contact Licensee from time to time about Licensee’s use of the API Materials and/or the API Credentials, and Licensee agrees to be responsive to inquiries from Real Geeks. Licensee is responsible for the confidentiality of the API Credentials and may not share them with any other developer or third party. Licensee shall take all steps necessary to protect all API Credentials, to safeguard the security and integrity of the API Materials and the Real Geeks Services, and to protect against unauthorized access and use. Licensee shall keep its registration, site, application and service information accurate, complete, and current. Licensee is responsible and liable for all use that occurs under the API Credentials, including any activities by Licensee or its employees, contractors or agents. Licensee will contact Real Geeks immediately if it has reason to believe there has been an unauthorized use of or access to the API Credentials. All use of the API Materials and if applicable, the Real Geeks Services, must comply with the user policies established by Real Geeks from time to time.
SECTION 3.
Restrictions on Use. Licensee and its Users shall not: (a) access or use the API Materials or Real Geeks Services in violation of any state, federal or local laws, rules or regulations; (b) access or use the API Materials or Real Geeks Services in any manner that: (i) compromises, breaks or circumvents any of Real Geeks’ technical processes or security measures associated with the Real Geeks Services, the API Credentials, or the API Materials; (ii) poses a security vulnerability to Users, Customers, Customer Data, Real Geeks Data or to the Real Geeks Services, or (iii) tests the vulnerability of the Real Geeks Services or Real Geeks’ systems, equipment or networks; (c) access the API Materials or Real Geeks Services in order to replicate or compete with the Real Geeks Services or the API Materials; (d) attempt to translate, reverse engineer, decompile, disassemble, circumvent the security and restrictions, or otherwise attempt to discover the source code, object code, trade secrets, or know-how, or underlying structure, ideas, or algorithms of the Real Geeks Services or the API Materials; (e) attempt to use the API Materials or Real Geeks Services in a manner that exceeds rate or reasonable usage limits, or constitutes excessive or abusive usage; (f) reproduce, duplicate, disseminate, copy, modify, translate the API Materials or Real Geeks Services; (g) sell, rent, lease, loan, distribute, pledge, assign, or otherwise transfer or encumber rights to the API Materials or Real Geeks Services, or otherwise disclose the API Materials or Real Geeks Services to any third party or use the same for the purpose of commercial timesharing, service bureau or other rental or sharing agreements with or for the benefit of any third party or customer; (h) access or use the API Materials or Real Geeks Services for any purpose other than as expressly authorized by the License; (i) remove or otherwise alter any proprietary notices or labels from the API Materials or the Real Geeks Services or any portion thereof; (j) use the API Materials or Real Geeks Services for web scraping, web harvesting, or web data extraction; (k) use the API Materials or the Real Geeks Services if Licensee is a competitor of Real Geeks, except with Real Geeks’ prior written consent, (l) design, build or develop any product or service that competes against the API Materials or Real Geeks Services; (m) violate the security of any computer network, or crack, hack or circumvent any passwords or security encryption codes, (n) sending “spam” using the API Materials or the Real Geeks Services, or that otherwise interferes with the proper working of the API Materials and the Real Geeks Services (including, without limitation, by placing an unreasonable load on the API Materials’ and/or the Real Geeks Services’ infrastructure), (o) through the use of manual, automated or any other means, engage in any action that “crawls,” “scrapes,” or “spiders” any page, data or portion of or relating to the API Materials or the Real Geeks Services, (p) perform, monitor, analyze or disclose the API Materials’ or the Real Geeks Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes, or (q) use the API Materials or the Real Geeks Services to create any other product or service other than as permitted by the License. Licensee will engage in activities under the License and use the API Materials only in compliance with: (i) the Services Order Form; (ii) the License granted hereunder; and (iii) in accordance with all applicable state, federal and local laws, rules and regulations.
SECTION 4.
Updates. During the Term of this Agreement, Real Geeks may maintain, correct and modify, and may upgrade and update the API Materials and/or the Real Geeks Services (collectively, “Updates”); provided, however, that the nature, substance, content, timing, manner and release of Updates, if any, shall be in the sole and absolute discretion of Real Geeks. Updates may also reflect changes in, among other things, laws, regulations, rules, technology, industry practices and patterns of system use. Updates may also include additional features, functionality or services that may be subject to additional fees and charges.
SECTION 5.
Real Geeks Data. Licensee’s use of the API Materials or Real Geeks Services may include access to information, data (other than Customer Data (as hereinafter defined)), materials and content stored, generated, input, output or otherwise provided or available in connection with the API Materials or the Real Geeks Services (collectively, the “Real Geeks Data”). The Real Geeks Data is included within the definition of the Real Geeks Services and is owned by Real Geeks. Licensee shall not collect, use, store, aggregate or transfer any Real Geeks Data or Customer Data in any manner except as expressly permitted in this Agreement by the License. Licensee agrees not to transfer, license, market, sell, lease, or disclose any Real Geeks Data or Customer Data to any third parties, except as expressly permitted by this Agreement, or the owner of Customer Data, and in full compliance with all applicable laws and the Data Privacy Standards.
SECTION 6.
Customer Data and Third Party Resources. Real Geeks’ customers of the Real Geeks Services and such customers’ users (each, a “Customer”) shall own all data, text, images, audio, video, photographs, and other content and material that is uploaded by such Customer to the Real Geeks Services (collectively, the “Customer Data”). The term “Customer Data” does not include the Real Geeks Services, Real Geeks Data, API Materials, Third Party Resources, the Real Geeks Intellectual Property, or any other Real Geeks products or services, or any derivative works thereof. Any Customer may disclose or transfer, or instruct Real Geeks to disclose or transfer, Customer Data to Licensee, and upon such disclosure or transfer Real Geeks is no longer responsible for the security or confidentiality of such content and applications outside of Real Geeks. Licensee will not transfer or disclose any Customer Data to any third parties, expressly permitted by this Agreement, pursuant to an agreement between Licensee and the applicable Customer, and in full compliance with all applicable laws. The term “Third Party Resources” means all software, hardware, network, applications, data, data feeds, information, application programming interfaces (APIs), text, images, audio, video, photographs and other content and material, in any format, that are obtained or derived from third party sources outside of Real Geeks may be accessible or used through, within, or in conjunction with the Real Geeks Services. Third Party Resources are not included with and are not a part of the Real Geeks Services or API Materials. Licensee will be responsible for, at its expense, establishing, purchasing and maintaining any and all Third Party Resources. Real Geeks shall have no responsibility for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer Data or Third Party Resources, including any viruses, Trojan horses, worms or other harmful programming routines. All ownership and intellectual property rights in and to Third Party Resources and the use thereof is governed by separate third party terms between Licensee and the third party. Real Geeks does not control and is not responsible for any Third Party Resources. ANY THIRD PARTY RESOURCES ACCESSIBLE OR AVAILABLE ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. LICENSEE ACKNOWLEDGES AND AGREES THAT REAL GEEKS IS NOT RESPONSIBLE FOR, AND HAS NO OBLIGATION TO CONTROL, MONITOR, OR CORRECT THIRD PARTY RESOURCES. REAL GEEKS DISCLAIMS ALL LIABILITIES ARISING FROM OR RELATED TO THIRD PARTY RESOURCES. Licensee acknowledges and agree that: (i) the nature, type, quality and availability of Third Party Resources may change at any time during the Term; and (ii) features of the Real Geeks Services and API Materials that interoperate with Third Party Resources depend on the continuing availability of such Third Party Resources. Real Geeks may need to update, change or modify the Real Geeks Services under this Agreement as a result of a change in, or unavailability of, any Third Party Resources. If any third party ceases to make its Third Party Resources available on reasonable terms for the Real Geeks Services or API Materials, as determined by Real Geeks in its sole discretion, Real Geeks may cease providing access to the affected Third Party Resources without any liability to Licensee. Any changes to Third Party Resources, including their unavailability, during the Term does not affect Licensee’s obligations under this Agreement or any Services Order Form, and Licensee will not be entitled to any refund, credit or other compensation due to any such changes. Licensee acknowledges and agrees that: (x) Real Geeks is not an agent of any third party providing or selling Third Party Resources; (y) any agreements relating to Third Party Resources are solely between Licensee and the applicable third-party; and (z) Real Geeks has no liability for or relating to any Third Party Resources, Customer Data or disputes between Licensee and any Third Party Resources or between Licensee and any User or Customer, and Real Geeks does not control, endorse or accept responsibility for any third parties. Licensee irrevocably waives, releases and discharges Real Geeks from any claims arising out of or relating to Third Party Resources and their use. Licensee shall indemnify, defend and hold Real Geeks harmless from and against all claims, liabilities, damages, judgments, actions, and causes of action arising out of or relating to all and any claims, liabilities, judgments, actions, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or related to (a) Licensee’s receipt and/or use of Customer Data or Third Party Resources, (b) the Licensee Application or any User’s or Customer’s use of the Licensee Application or any Third Party Resources, and/or (c) any software, programs, applications or application programming interfaces created or used by Licensee under the License.
SECTION 7.
Confidentiality, Non-Use and Non-Disclosure. Licensee will treat and hold all confidential, commercially sensitive, proprietary, and/or non-public information (“Confidential Information”) received from Real Geeks in strict confidence and will not use or disclose to anyone any of the information except in connection with Licensee’s performance under this Agreement. The term
“Confidential Information” shall include the terms and conditions of this Agreement, the API Materials, the API Credentials, PII (as defined below), Real Geeks Data, Customer Data, Real Geeks Intellectual Property, the Real Geeks Services and their features, functionality, work-flow, algorithms, screen displays and methods, Updates and all documentation relating thereto, and Third Party Resources and any data provided or generated in connection with their use. Upon termination, cancellation or expiration of this Agreement, or at any time upon Real Geeks’ request, for any reason whatsoever, Licensee shall return to Real Geeks or at Real Geeks’ instruction, purge or destroy, any or all Confidential Information, Real Geeks Data, Customer Data, records or any other data or information retrieved by or from the Real Geeks Services or Users. Licensee shall certify its compliance in a writing certified by an officer of Licensee.
SECTION 8.
Security. Real Geeks utilizes commercially reasonable and appropriate administrative, technical, and physical procedures to protect Customer Data, Real Geeks Data and Confidential Information used in connection with the Real Geeks Services from unauthorized access and accidental loss or modification. However, Real Geeks cannot guarantee that unauthorized third parties will never be able to defeat those measures or use such information for improper purposes. Licensee acknowledges that if Licensee provides any information or data to Real Geeks, Licensee does so at its own risk. Real Geeks may provide, suggest or mandate security procedures and controls intended to reduce the risk to Licensee of fraud or security breaches (“Security Controls”). These Security Controls may include processes or applications that are developed by Real Geeks or by third parties. Licensee agrees to review all Security Controls provided, and protect against unauthorized transactions and, if necessary, use other procedures and controls not provided by Real Geeks.
SECTION 9.
Protected Information. Licensee represents, warrants, covenants and agrees that Licensee shall comply with all relevant and/or applicable state and federal data privacy standards and all United States, foreign and other applicable laws, rules and regulations governing data, banking and financial information, real estate, the purchase or sale of real estate, real estate transactions, agencies and brokers, privacy, personal data and personal information and PII including, but not limited to, the California Consumer Privacy Act (CCPA), the General Data Protection Regulation (GDPR) (EU) 2016/679, and any other applicable laws, rules, regulations and guidelines, and all other requirements reasonably requested by Real Geeks (collectively, the “Data Privacy Standards”). The Real Geeks Data, Customer Data, and Confidential Information may include information, data and materials subject to the Data Privacy Standards. Licensee represents, warrants, covenants and agrees that from the Effective Date of this Agreement and for so long as it maintains, possesses, acquires, discloses, uses, or has access to any PII, Licensee shall at all times maintain the PII in strict confidence and shall not disclose it to anyone or use it for any purposes except as expressly authorized in this Agreement and as permitted by applicable law and the Data Privacy Standards, and Licensee shall be in strict compliance with the Data Privacy Standards and that it shall notify Real Geeks within twenty-four (24) hours if it is no longer in
compliance with such Data Privacy Standards. Real Geeks shall have the right, at any time, to require Licensee and its Users to remove, destroy or purge any information from its possession, custody or control that constitutes PII when required by any of the Data Privacy Standards. Real Geeks shall have the right, but not the obligation, upon reasonable prior notice, to audit Licensee and its Users to confirm compliance with this Agreement and the Data Privacy Standards, which audit may include on-site inspections, requests for copies of documents and records, interviews with employees and representatives, proof of compliance, and written certifications executed under oath. The term “PII” means personal information, personally identifiable information, non-public information (NPI), any information about an individual, information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context, and any other information protected or regulated under applicable law and includes: (i) any information that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records; (ii) credit card, debit card and other banking and payment information; (iii) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information; (iv) any non-public personal information regarding any individual that is subject to applicable national, state, regional, and/or local laws and regulations governing the privacy, security, confidentiality and protection of non-public personal information; (v) is Personally Identifiable Information, as defined by state breach notification statutes; (vi) non-public information (NPI) as defined and/or used by applicable state, federal or local laws, rules or regulations; (vii) information appearing on applications for obtaining financial services (such as credit card or loan applications), or on account histories (such as bank or credit card histories), a person’s status (current or previous) with a banking, credit, lending or other financial organization, including names, addresses, telephone numbers, Social Security numbers, PINs, passwords, account numbers, salaries, medical information, and account balances; and (viii) any information or materials protected by applicable state, federal or local laws, rules or regulations or governing real estate or its purchase or sale, real estate brokers, agents, transactions or related documents.
SECTION 10.
Ownership of Intellectual Property. Licensee shall not contest or otherwise challenge: (a) Real Geeks’ designation of its Confidential Information as trade secrets and commercially sensitive and confidential and proprietary information; or (b) Real Geeks’ ownership of the Confidential Information, the Real Geeks Marks (as defined below), the API Materials, the API Credentials, the Real Geeks Services, Real Geeks Data, Feedback (as defined below) and of all copyrights, patents, trade secrets, service marks, trademarks, proprietary rights, domain name registrations, and other intellectual property rights therein and arising therefrom (collectively, the “Real Geeks Intellectual Property”). Real Geeks is the owner of all Real Geeks Intellectual Property and no title or ownership of the Confidential Information or Real Geeks Intellectual Property is transferred to Licensee by way of this Agreement. Except for the limited rights granted to in the License, no other rights, whether express or implied, are granted to Licensee, and are reserved to and retained by Real Geeks. In the event that Licensee provides to Real Geeks any feedback, suggestions or comments (“Feedback”) regarding the API Materials or the Real Geeks Services, or Licensee’s
use thereof, Licensee agrees that Real Geeks will be free to use, copy, modify, create derivative works, distribute, publicly display, publicly perform, grant sublicenses to, and otherwise exploit in any manner such Feedback, for any and all purposes, with no obligation of any kind to Licensee, and Real Geeks shall be free to exploit and/or incorporate such Feedback in connection with the API Materials, Real Geeks Services, Updates and/or Real Geeks’s business. Licensee agrees that any Feedback shall be owned solely by Real Geeks, shall be included as part of the Real Geeks Intellectual Property. Licensee acknowledges and agrees that Real Geeks may currently or in the future develop products and services or enter into agreements and licensees with third parties for services and products that may be similar to or compete with the Licensee Application or Licensee’s use of the API Materials. Nothing in this Agreement shall in any way restrict Real Geeks from pursuing any business activities or from entering into any agreement with any other person or company.
SECTION 11.
Interruption of Use. Licensee acknowledges and agrees that the Real Geeks Services, the API Materials and/or the API Credentials may be inaccessible or unavailable, in whole or in part, for various reasons including (“System Downtime”): (a) equipment, network, software and/or hardware malfunctions; (b) maintenance and repairs, and servicing, upgrading, and testing of the Real Geeks Services, the API Materials and/or the API Credentials and their components; and (c) downtime caused by reasons beyond Real Geeks’s reasonable control, including actual or threatened security concerns, Internet and connectivity failures and Force Majeure events. Real Geeks shall not be liable for System Downtime and such instances shall not constitute a breach of this Agreement.
SECTION 12.
Term of Agreement. Unless earlier terminated in accordance with Section 13 below, the term of this Agreement is conditioned solely and exclusively at Real Geeks discretion. However, if Licensee cancels Licensee’s account with Real Geeks, Licensee’s access to and use of the API Materials and Real Geeks Services shall simultaneously terminate. Licensee’s access to and use of the API Materials and Real Geeks Services is predicated on Licensee being a customer of Real Geeks.
SECTION 13.
Termination. Real Geeks may terminate this Agreement at any time for any reason and return to Licensee the pre-paid portion of the fees under the applicable Services Order Form for the remaining and unused portion of the License for the then in-effect Term. Either party may terminate this Agreement immediately and without notice if the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors.
SECTION 14.
Effect of Termination. Upon termination, cancellation or expiration of this Agreement for any reason whatsoever: (a) the License granted to Licensee shall immediately, automatically, and without notice, be revoked; (b) Licensee shall immediately cease all access to and use of the API, the API Materials, the Real Geeks Services and all Confidential Information; (c) Licensee shall return to Real Geeks all Confidential Information in accordance with Section 7; and (d) Real Geeks shall have the right to terminate and deny Licensee access to and use of the API, the API Materials, the Real Geeks Services, and the API Credentials immediately and without notice. The obligation set forth in Sections 6, 7, 9, 10, 14, 15, 17, 19, 21 and 22 shall survive the termination, cancellation or expiration of this Agreement for any reason whatsoever, along with any other provisions which, by their nature, are intended to survive.
SECTION 15.
Representations and Warranties of Licensee. Licensee represents and warrants that: (a) Licensee will comply with all governmental authorities and all federal, state, local and foreign laws, rules and regulations applicable to this Agreement, the License and/or Licensee’s access to or use of the Customer Data, Real Geeks Data, Confidential Information, the API Materials, the Real Geeks Services, and API Credentials, including the Data Privacy Standards; (b) Licensee will not use the API Materials, the Real Geeks Services or the API Credentials for any illegal purpose or in violation of any law or regulation; (c) the Licensee Application, Licensee’s data, and Licensee’s development and use of the API Materials shall not infringe, misappropriate or otherwise violate any patent, copyright, trade secret or other intellectual property right of any third party; and (d) Licensee shall not use the API Materials, the Real Geeks Services or the API Credentials to transmit, receive, download, upload or solicit any materials, data, information or content: (i) which may violate any copyright, trade secret, trademark, service mark or any other intellectual property rights or rights of privacy or publicity of any person or entity; (ii) containing any destructive or interfering programs, applications, or instructions, or (iii) which may subject either party to civil or criminal liability. Licensee shall defend, indemnify and hold harmless Real Geeks and its employees, officers, directors, managers, members, principals, agents, representatives, contractors, successors and assigns from and against any actual or threatened claims arising out of or relating to any actual or threatened (a) breach of this Agreement by Licensee or Licensee’s breach or default of this Agreement, including any of the representations and warranties set forth in this Section and in Section 9, and the obligations set forth in Section 3, (b) Licensee’s use of the Real Geeks Services or API Materials, and (c) any claim by a User, Customer and/or Third Party Resource arising out of or relating to Licensee’s use of the API Materials or Real Geeks Services, or any agreements or disputes between Licensee and any User, any Customer or Third Party Resource.
SECTION 16.
Warranties. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS IS AN AGREEMENT FOR SERVICES AND NOT FOR THE SALE OF GOODS. REAL GEEKS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE AND ALL SERVICES PERFORMED OR PROVIDED UNDER THIS AGREEMENT (INCLUDING THE API MATERIALS AND REAL GEEKS SERVICES) ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” REAL GEEKS DISCLAIMS ANY AND ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES AS TO NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY AND FITNESS FOR ANY PARTICULAR PURPOSE, AS TO ANY RESULTS THAT MAY BE OBTAINED FROM USE OF THE API MATERIALS, THE REAL GEEKS SERVICES, THE API CREDENTIALS OR ANY OTHER SERVICES, AS WELL AS ANY AND ALL WARRANTIES ARISING BY LAW, STATUTE, USAGE OF TRADE OR COURSE OF DEALING. LICENSEE ACKNOWLEDGES THAT THE API MATERIALS, THE REAL GEEKS SERVICES, THE API CREDENTIALS AND ANY OTHER SERVICES MAY NOT BE ERROR FREE. REAL GEEKS MAKES NO WARRANTIES WITH RESPECT TO THE API MATERIALS, THE REAL GEEKS SERVICES OR ANY THIRD PARTY RESOURCES, CUSTOMER DATA OR ANY BUGS, ERRORS OR INCORRECT INFORMATION OR DATA THEY CREATE OR PROVIDE, EVEN IF INCORPORATED INTO OR A PART OF THE SERVICES. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.
SECTION 17.
LIMITATION OF REMEDIES AND LIABILITY. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER REAL GEEKS NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, DELIVERY OR PERFORMANCE OF ANY OF THE SERVICES PROVIDED UNDER THIS AGREEMENT SHALL BE LIABLE TO LICENSEE OR ANY OF LICENSEE’S USERS, EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, CONTRACTORS, SUCCESSORS OR ASSIGNS FOR ANY LOST PROFITS, LOST SAVINGS, DATA LOSS, INJURY TO GOODWILL OR REPUTATION, LOSS OF ANTICIPATED BENEFITS, DISRUPTION OR INTERRUPTION TO ITS BUSINESS, LOST CUSTOMERS, OR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT, ANY API MATERIALS, THE REAL GEEKS SERVICES, API CREDENTIALS OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE
AGREES THAT REAL GEEKS’S TOTAL, AGGREGATE AND COMPLETE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF RELATING TO THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT, OR ANY OF THE API MATERIALS, THE REAL GEEKS SERVICES, THE API CREDENTIALS OR ANY OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE IN NO EVENT SHALL EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY LICENSEE TO REAL GEEKS UNDER THE APPLICABLE SERVICES ORDER FORM GIVING RISE TO THE LIABILITY DURING THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT LICENSEE FIRST PROVIDES REAL GEEKS WITH WRITTEN NOTICE OF THE EVENT GIVING RISE TO THE LIABILITY, AND A REFUND OF ANY PRE-PAID PORTION OF THE FEES UNDER THE APPLICABLE SERVICES ORDER FORM FOR THE REMAINING AND UNUSED PORTION OF THE SERVICES FOR THE THEN IN-EFFECT TERM. ALL OF THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND EVEN IF REAL GEEKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITIES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO LICENSEE.
SECTION 18.
Disablement. Notwithstanding any provision of this Agreement to the contrary, Real Geeks shall have in its sole and absolute discretion, among its other rights and remedies, the right to immediately temporarily or permanently disable, suspend or terminate Licensee’s access to and/or use of the API Materials, the Real Geeks Services or the API Credentials, in whole or in part, with or without notice. Whenever reasonably possible, Real Geeks will provide prior notice of a suspension or disablement. In the event Real Geeks reconnects any disabled and/or suspended API Materials, Real Geeks Services and/or API Credentials, Real Geeks may charge Licensee a reconnection fee.
SECTION 19.
Service Monitoring and Analyses. Real Geeks monitors the Real Geeks Services, all uses of the API Materials and the API Credentials to facilitate its operation of the Real Geeks Services and other business purposes, internal and external; to help resolve service requests; to detect and address threats to the functionality, security, integrity, and availability of the Real Geeks Services as well as any content, data, or applications in the Real Geeks Services; and to detect and address illegal acts or violations of this Agreement or Real Geeks’s policies. Information collected by Real Geeks monitoring tools may also be used to assist in managing Real Geeks’s product and service portfolio, to help Real Geeks address deficiencies in its product and service offerings, and for license management purposes. Real Geeks may: (a) compile statistical and other information related to the performance, operation and use of the Real Geeks Services and information and data
input, output and processed by the Real Geeks Services and all transactions; and (b) use any and all such information and data collected from the Real Geeks Services in aggregated form for commercial purposes, security and operations management, to create statistical analyses, for research and development purposes, and selling and disclosing to its clients and third parties specific and/or aggregated data, information and reports (clauses (a) and (b) are collectively referred to as “Service Analyses”). Real Geeks may make Service Analyses publicly available; however, Service Analyses will not incorporate Licensee’s data (if any) or Confidential Information in a form that could serve to identify Licensee or any individual, and Service Analyses do not constitute personal data or Licensee’s data. Real Geeks retains all intellectual property rights in Service Analyses.
SECTION 20.
Entire Agreement and Amendments. This Agreement (consisting of the Services Order Form and these API License Terms of Use) embodies the entire understanding of the parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. The parties expressly declare and understand that no promises, inducements, consideration or agreements not herein expressed have been made to them. This Agreement may not be amended or modified except by a written agreement signed by both parties.
SECTION 21.
Non-Solicitation. Licensee acknowledges and agrees that Real Geeks’s employees, contractors and subcontractors (“Real Geeks Representatives”) are critical to the servicing of Real Geeks’s Customers and maintaining, supporting and providing the Real Geeks Services and the API Materials and that, at Real Geeks’s expense, they were provided specialized training. Licensee agrees that during the Term of this Agreement and continuing for a period of twelve (12) months following the termination, cancellation or expiration of this Agreement for any reason whatsoever, Licensee shall not directly or indirectly employ, hire, solicit or otherwise engage any Real Geeks Representatives, whether as an employee, contractor, consultant or to perform any work or services or create or provide any deliverables for Licensee, either directly or through a third party or entity, whether or not relating to the Real Geeks Services or the API Materials, or otherwise encourage or solicit any Real Geeks Representatives to leave or separate their employment or relationship with Real Geeks or to work for any other person or entity. In the event of any breach of this Section, Licensee agrees to pay Real Geeks, as liquidated damages, an amount equal to one hundred percent (100%) of such Real Geeks Representative’s annual salary. However, such payment does not restrict the other party’s rights or remedies as they relate to the Real Geeks Representative.
SECTION 22.
Governing Law, Arbitration and Attorneys’ Fees. This Agreement shall be construed and the legal relations between the parties determined in accordance with the laws of the State of Texas. The Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply to this Agreement or to orders placed under it. Any dispute, controversy or claim arising out of or relating to the Real Geeks Services, the API Materials, the API Credentials, the Licensee Application, or this Agreement, or its negotiation, performance, execution or breach, shall be settled exclusively by arbitration in accordance with the Commercial Rules of the American Arbitration Association (“AAA”). The arbitration and all proceedings shall take place in Wilmington, New Castle County, Delaware before a single arbitrator selected by the parties in accordance with the AAA rules; however, the arbitrator shall have no less than ten (10) years’ experience in computer law and commercial matters. The decision of the arbitrator shall be final and binding and judgment upon the award rendered by the arbitrator shall be entered in any court having jurisdiction thereof. All proceedings, the decision and submissions made in connection with the arbitration shall be confidential. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provisions in this Section, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Dallas, Texas. In any dispute arising out of or relating to this Agreement, the prevailing party shall receive an award of its reasonable attorneys’ fees and costs in any proceeding, including on appeal and enforcement. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THE PARTIES AGREE THAT: (A) BY ENTERING INTO THIS AGREEMENT, LICENSEE AND REAL GEEKS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, COUNTERCLAIM OR CROSS-CLAIM BROUGHT BY REAL GEEKS OR LICENSEE, AND ARE ALSO WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
SECTION 23.
Interpretation. The use in this Agreement of the word “including” will mean “including, without limitation.” The words “hereby,” “herein,” “hereinafter,” “hereof,” “hereto,” “hereunder,” and other words of similar import refer to this Agreement as a whole, as the same may be altered, amended, modified, repealed, restated and/or supplemented in accordance with the provisions contained in this Agreement, and not to any particular article, clause, paragraph section, subparagraph or subsection contained in this Agreement. All references to articles, clauses, paragraphs, sections, subparagraphs, and subsections will mean the articles, clauses, paragraphs, sections, subparagraphs and subsections contained in this Agreement, except as otherwise expressly provided in this Agreement. The title of and the article, section and paragraph headings contained in this Agreement are for convenience of reference only and will not affect or govern
the interpretation of any of the provisions contained in this Agreement. The use in this Agreement of the singular form of a definition or term also will denote the plural forms of such definition or term, and vice-versa, as in each case the context may require. Where specific language is used to clarify by example a general statement contained in this Agreement, such specific language will not be deemed to limit, modify or restrict in any manner the construction of the general statement to which it relates. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to the interpretation and construction of this Agreement and this Agreement shall be construed as having been jointly drafted by the parties.
SECTION 24.
Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. However, if any provision of this Agreement or the application of any provision to any party or circumstance shall be prohibited by or invalid under applicable law, such provision shall be reduced to such scope as is reasonable and enforceable if possible. Otherwise, such provision shall be severed from this Agreement and ineffective to the extent of such prohibition or invalidity without it invalidating the remainder of the provisions of this Agreement or the application of the provision to the other parties or other circumstances.
SECTION 25.
Waiver. The failure or delay of any party in exercising any of its rights hereunder, including any rights with respect to a breach or default by the other party, shall in no way operate as a waiver of such rights or prevent the assertion of such rights with respect to any later breach or default by the other party. No party shall be deemed to have waived any rights under this Agreement by any action or inaction unless an express waiver is set forth in writing. The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach.
SECTION 26.
Assignment and Binding Effect. This Agreement shall be binding upon the parties and each of their respective successors and assigns. This Agreement is personal to Licensee and may not be assigned or transferred by Licensee, in whole or in part, whether by agreement, merger, sale, change of ownership, equity or control, by operation of law or otherwise. There are no third party beneficiaries to this Agreement, whether express or intended.
SECTION 27.
Notice. All notices, requests, demands, or other hereunder shall be in writing and shall be deemed given only if delivered personally or sent via overnight delivery to the applicable party’s mailing address. Any legal notice sent by Licensee to Real Geeks must also be emailed to rglegalinquiries@realgeeks.com.
SECTION 28.
Force Majeure. Neither party shall be liable in damages, in breach or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by any act of God, flood, fire, storm, strike, lockout, war, riot, insurrection or any other cause beyond the reasonable control of the party whose performance is affected (a “Force Majeure”) to the extent the same directly prevents or delays the performance of such party’s obligations hereunder; provided that, no such condition shall excuse or justify any delay in a party’s performance of its payment obligations hereunder.
SECTION 29.
Relationship of the Parties. The relationship of the parties is that of independent entities. Nothing herein will be construed as creating any agency relationship employment relationship, joint venture or partnership between the parties. Neither party is authorized to make any agreements, covenants, representations or warranties on behalf of the other.
SECTION 30.
Export. The Real Geeks Services, the API Materials and the API Credentials will not be used in any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively the “Export Laws”). Licensee agrees to comply with all Export Laws and neither Licensee nor any of its Users or their employees or customers are citizens, or otherwise located within, an embargoed nation (including without limitation Iran, Syria, Sudan, Cuba, and North Korea) and Licensee and its Users and their employees and customers are not otherwise prohibited under the Export Laws from performing or using the API Materials or engaging in any activities under this Agreement. Licensee acknowledges that the API Materials and Real Geeks Services are designed with capabilities for Licensee and its Users and their employees to access and use them without regard to geographic location and to transfer or otherwise move information and data between them and other locations.
SECTION 31.
Trademarks and Press Releases. The rights granted in this Agreement do not include any general right to use Real Geeks’ name or trademarks, service marks or logos (the “Real Geeks Marks”). Real Geeks may provide Licensee with limited permission to use the Real Geeks Marks if agreed in advance and in writing between the parties. Real Geeks may issue a press release(s) regarding the relationship hereunder. Licensee also agrees that Real Geeks may use Licensee’s name and logo on Real Geeks’ website and in Real Geeks’ promotional materials as part of a general list of customers or individually as part of a case study or available integrations and connectivity.
SECTION 32.
Policies. Licensee may view Real Geeks’ policies at the following links: Real Geeks Privacy Policy: https://www.realgeeks.com/privacy/
