Effective Date: February 6, 2018
BACKGROUND. Clarivate (“Clarivate” “us,” “our” or “we”) has developed a set of Application Programming Interfaces and related technology called the “Software Development Kit” (the “API/SDK”) in connection with our proprietary computer program known as “EndNote®”. Pursuant to the terms of this License Agreement (“Agreement”), you (“Licensee”) may use the API/SDK to create plug-ins and associated applications that interact with and enhance the use of EndNote. By using the API/SDK and/or its accompanying manuals, samples and examples (the “Documentation”), you agree with Clarivate to be bound by the terms and conditions set forth herein.
THEREFORE, for good and valuable consideration, including the rights and license granted in this Agreement, and intending to be legally bound, Clarivate and Licensee agree as follows:
1. DESCRIPTION AND USE
1.1 EndNote API / Software Development Kit. The EndNote API/SDK consists of specific programmatic APIs, interface definitions, generated code libraries and associated tools, which allows you to create software plug-ins or applications that work along with EndNote to read, write, update, or delete certain content from EndNote libraries (databases). Functionality may also be developed to augment certain existing capabilities of EndNote and to facilitate enhanced work flows between EndNote and other third-party applications. Plug-ins or applications developed using the API/SDK may be integrated into the EndNote interface or into a third-party application, or may be separate, stand-alone applications provided they meet all requirements set forth in this Agreement.
1.2 Responsibility Regarding Work Product. Subject to the terms of this Agreement, you are entitled to use and share with third parties any plug-in, application, tool or other work product developed with the API/SDK that enhances the experience of EndNote users (“Work Product”); however, you may not commercially license or distribute the Work Product unless you have formally alerted Clarivate of your intent and obtained our written approval. You are solely responsible for any Work Product that you develop and release. You hereby agree that you will make your Work Product available only to end users that have agreed to the following terms in connection with their use of the Work Product: (i) end users may not create derivative works based on any portion of your Work Product; (ii) end users may not provide services for a fee using your Work Product; (iii) end users may not commercially distribute your Work Product; and (iv) end users may not use your Work Product for any illegal or injurious purpose. You further agree that you will not grant end users any rights with respect to your Work Product that are inconsistent, or in conflict, with the terms set forth herein.
1.3 Prohibited Uses. Without limiting other restrictions in this Agreement, you agree that (i) the API/SDK may not be used to create Work Product that (a) offers or promotes services that may be damaging to, disparaging of or otherwise detrimental to EndNote or its licensors, licensees, affiliates and partners, (b) transfers, displays or uses content or functionality from EndNote without creating additional and distinct benefit(s) for EndNote users, (c) competes with EndNote in any commercial or non-commercial market, or (d) leverages EndNote as a hosted application on a web server; and (ii) the API/SDK and Work Product may not be used with demo versions of EndNote other than for short-term testing and evaluation purposes.
1.4 API/SDK Modifications. Clarivate reserves the right to modify the API/SDK, and to release subsequent versions. You may be required to use the most recent version of the API/SDK in order to obtain functionality for associated plug-ins and applications. The API/SDK is currently provided free of charge, but Clarivate reserves the right to charge for the API/SDK (or additional features or functionality thereof) in the future.
1.5 Use of Work Product. You agree to provide Clarivate with access to your Work Product. Regardless of whether the Work Product is integrated into a third-party application, or created as a separate, stand-alone application, a free, courtesy copy (or free log-in access) will be provided to Clarivate promptly upon request by Clarivate In consideration of the rights granted by Clarivate herein, you hereby grant to us a fully paid-up, royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to: (i) use, reproduce, perform and display your Work Product for our business purposes; (ii) link to and direct users to such Work Product; and (iii) sublicense the foregoing rights to our affiliates or any third parties that are working with us as development partners, hosting facilities or in similar capacities in order to enable them to perform their services.
1.6 Support. Clarivate has no obligation to provide you or any users of your Work Product with support, software upgrades, enhancements or modifications to the API/SDK. You understand and agree that you are solely responsible for providing user support and any other technical assistance for your Work Product.
2.1 API/SDK License. Subject to the terms and conditions of this Agreement, Clarivate grants you a limited, non-exclusive, revocable, non-transferable license to access and use the API/SDK solely to (i) develop, test, display and execute your Work Product; (ii) create functionality to extract and display EndNote library content in your Work Product; and (iii) distribute to third parties, or permit third parties to access, your Work Product.
2.2 Restrictions. You will not, and will not permit any person, directly or indirectly, to (i) reverse engineer, disassemble, reconstruct, decompile, translate, modify or copy the API/SDK, other than as explicitly permitted hereunder (except to the extent the foregoing restriction is expressly prohibited by applicable law notwithstanding this limitation), (ii) create derivative works of the API/SDK or any aspect or portion thereof, including without limitation, source code and algorithms, or (iii) distribute or otherwise disseminate the API/SDK by any means or in any form, except as an integral part of your Work Product. Except as expressly set forth in this Agreement, you may not make any use of the API/SDK.
2.3 Trademark License. Subject to the terms of this Agreement, Clarivate grants you a limited, non-exclusive, revocable, non-transferable license to display the EndNote trademark solely for the purpose of attributing the source of the API/SDK and indicating that you used the API/SDK in creating your Work Product. You may not use the Endnote trademark in a manner that creates or reasonably implies endorsement or sponsorship by Clarivate. You shall obtain our written permission prior to each specific use of the EndNote trademark. All use by you of the EndNote trademark (including any goodwill associated therewith) shall inure to the benefit of Clarivate. At no time during or after the term of this Agreement shall you challenge or assist others to challenge the EndNote trademark or the registration thereof by Clarivate, nor shall you attempt to register the EndNote trademark or brand identifiers (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to the EndNote trademark.
3. WARRANTY, DISCLAIMER. You represent and warrant to Clarivate that: (i) any Work Product developed by you or your contractors using the API/SDK is your original work, and such Work Product shall not infringe or violate the intellectual property or proprietary rights of any third party; and (ii) our and our sublicensees’ and affiliates’ use of your Work Product as contemplated herein shall not violate the intellectual property or proprietary rights of any third party.
4. ENDNOTE APPLICATION DEVELOPMENT. You acknowledge and agree that Clarivate may create features, applications, content, and other products or services that may be similar to your Work Product, and nothing in this Agreement will be construed as restricting or preventing Clarivate from creating and fully exploiting such applications, content and other items, without any obligation to you. If you elect to provide us with any suggestions or feedback, you hereby assign all right, title and interest in and to such suggestions or feedback to Clarivate, and acknowledge that we will be entitled to use, implement and exploit any such suggestions or feedback in any manner without restriction, and without any obligation of confidentiality, attribution, accounting or compensation to you.
5. PROPRIETARY RIGHTS. Clarivate shall own and retain all right, title and interest, including without limitation all intellectual property rights, in and to (i) the API/SDK and any and all elements and components thereof, including content, technology, software code, user interfaces and any derivative works and/or compilations thereof; (ii) the EndNote trademark; and (iii) any feedback provided by you (including suggestions, comments, improvements, ideas, etc.) about or relating to EndNote, EndNote plug-ins, the API/SDK, or any applications that Clarivate may be developing (collectively, “Clarivate Property”). You shall own and retain all right, title and interest in and to your Work Product, except with respect to any Clarivate Property that has been incorporated therein.
6. TERMINATION. Without prejudice to any other rights or remedies that we may have, Clarivate may terminate the license granted hereunder (i) if Licensee fails to comply with any of the terms and conditions of this Agreement upon written notice or (ii) for convenience upon thirty (30) days prior written notice to Licensee. In such event, Licensee shall discontinue any further use, and destroy all copies, of the API/SDK and Documentation in its possession or control. Sections 1.2, 1.3, 1.5, 4, 5, 6, 7, 8 and 9 shall survive any termination of this Agreement.
7. NO WARRANTY. THE API/SDK AND DOCUMENTATION ARE BEING PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CLARIVATE OR ITS AFFILIATES, OR ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES (COLLECTIVELY “CLARIVATE PARTIES”) BE LIABLE OR RESPONSIBLE FOR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE THE API/SDK OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF CLARIVATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE CLARIVATE PARTIES’ TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES OF ANY KIND AND TYPE (REGARDLESS OF WHETHER BASED IN CONTRACT OR TORT) SHALL NOT EXCEED THE LICENSE FEE (IF ANY) PAID BY YOU FOR THE API/SDK.
IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT.
9. INDEMNIFICATION. Licensee, at its own expense, shall defend, indemnify and hold harmless Clarivate and its affiliates from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses, including reasonable attorneys’ fees (any or all of the foregoing hereinafter referred to as “Losses”), insofar as such Losses (or third party actions in respect thereof) are based on, arise out of, or are related to (i) a breach by Licensee of any representation, warranty, covenant or agreement made by it hereunder; (ii) the use, operation, promotion, distribution or license of the Work Product by Licensee or its employees, contractors or agents; or (iii) claims brought by third parties to the extent arising out of the Work Product.
10. EXPORT CONTROLS. Licensee shall comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control in connection with Licensee’s use of the API/SDK.
11. INJUNCTIVE RELIEF. Licensee agrees that Clarivate will have the right to obtain an injunction against any unauthorized use of the API/SDK by Licensee, in addition to any other rights and remedies to which Clarivate may be entitled.
12. SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then such provision shall be adjusted to the minimum extent necessary for validity or enforceability, and in any event, the remaining provisions will nevertheless remain in full force and effect.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding and agreement between Clarivate and you with respect to the subject matter of this Agreement and supercedes all prior or contemporaneous oral or written communications with respect thereto. This Agreement may not be modified, except to the extent of a written agreement to do so by an authorized representative of Clarivate
14. CHOICE OF LAW. This Agreement shall be interpreted, construed and enforced in all respects in accordance with the internal laws of the Commonwealth of Pennsylvania, without regard to its principles of conflicts of law.
15. NO ASSIGNMENT. Licensee shall not assign, sublicense or delegate any of its rights or obligations under this Agreement to any third party without the prior written consent of Clarivate Any assignment, sublicense or delegation in violation of this provision shall be null and void.
16. ACKNOWLEDGMENT. Use of the API/SDK affirms that Licensee has read this Agreement, understands it, and agrees to be bound by its contents.