API Terms of Use

These API Terms of Use (the “API Terms”), dated as of March 20, 2020 (the “Effective Date”), are made and entered into by and between Madeium, Inc., an Oregon corporation and its affiliates (“Madeium” or “we”), and you (“Creative” or “you”). Madeium and Creative are sometimes referred to in the API Terms individually as a “Party” and collectively as the “Parties”. Madeium and Creative hereby agree as follows:

AGREEMENT TO THE API TERMS

By registering a software application, website, or product you create or service that you offer (a “Creative Application”), you agree to be bound by the API Terms. You must read, agree to, and accept all of the terms and conditions contained in the API Terms in order to use the Madeium API. Additionally, you agree to and accept the Madeium Terms of Service, available at https://www.madeium.com/legal. If you disagree with any of the terms of the API Terms or the Madeium Terms of Service, Madeium does not grant you a license to use the Madeium API. If you are using the Madeium API on behalf of a company or any other entity, you represent and warrant that you have full legal authority to register a Creative Application on behalf of that entity and bind it to the API Terms and the Madeium Terms of Service. If you are not authorized, you may not accept the API Terms or register a Creative Application for someone else.

DEFINITIONS

Capitalized terms not defined in the API Terms have the meanings given to them in the Madeium Terms of Service.

CREATIVE’S USE OF THE MADEIUM API

Creative wishes to use and access the Madeium API in connection with the development and distribution of a Creative Application and agrees to the additional requirements herein. Creative and Madeium hereby agree as follows:

API LICENSE

Using the Madeium API. As part of the API Terms, Madeium grants you a non-exclusive, non-transferable, and non-sublicensable (except as expressly permitted herein) license to use the Madeium API solely to do the following and subject to the restrictions set forth in the API Terms:

- Access Credentials. Madeium will provide you with Access Credentials that permit you to access the Madeium API. The Access Credentials are the property of Madeium and may be revoked if you share them with any third party (other than as allowed in the API Terms), if they are compromised, if you violate the API Terms or the Madeium Terms of Service, or if Madeium terminates the API Terms.

API Call Limitations. The number of API calls you will permitted to make during any given time period may be limited. Madeium will determine call limits based on various factors, including the ways your Application may be used or the anticipated volume of use associated with your Application. Madeium may, in its sole discretion, charge you for API calls that exceed the call limits or terminate your access to the Madeium API in accordance with Section 17 (Suspension and Termination). Unused calls will not roll over to the next day or month, as applicable.

CERTIFICATION

At its discretion, Madeium may require or offer Certification for certain Applications. Certification will consist of confirmation by Madeium or a third party it designates that your Application’s technology complies with the API Terms and the Madeium Terms of Service. You will be responsible for all costs associated with certification and any modifications necessary to meet the certification requirements and you may not be permitted to access the Madeium API in certain cases until certification is complete. At Madeium’s discretion, future modifications of your Application or use or display of Madeium Content may be subject to re-certification. If Madeium requires certification, your failure to maintain certification is cause for immediate termination of the API Terms.

DATA USE

- Obligations to Madeium. Creative may only use, disclose, and otherwise process Madeium User Data in accordance with the written instructions of Madeium and applicable laws, rules and regulations.

Prohibited Uses. Creative will not

DATA STORAGE

Except as provided in the API Terms, Creative may not copy or store any Madeium Content, or any information expressed by or representing Madeium Content (such as hashed or otherwise transformed data).

USER CONSENT AND AGREEMENT

- User Agreement and Privacy Policy. The Creative Application must include your own user agreement and privacy policy. Your user agreement and privacy policy must be prominently identified or located where members download or access the Creative Application. Your privacy policy must meet applicable legal standards and accurately describe the collection, use, storage and sharing of data. You must promptly notify us of any breaches of your user agreement or privacy policy that impact or may impact Madeium users.

- User Consent. Before obtaining information from Madeium users, you must obtain their informed consent by telling them what information you collect and how it will be used, stored or shared, and by taking any additional steps required by law or regulation.

DATA SAFEGUARDS

Creative will protect Madeium User Data in accordance with all applicable laws. Your network, operating system, and software of your web servers, databases, and computer systems (collectively “Systems”) must be properly configured to securely operate the Creative Application and Madeium User Data. The Creative Application must use reasonable security measures to protect any Madeium User Data and any elements or components of the Madeium API. You shall not architect, design, or select Systems in a manner to avoid these obligations. You must promptly report to Madeium at legal@madeium.com any security deficiencies in, or intrusions into, your Systems that you discover to Madeium. You will work with Madeium to correct any security deficiency and disconnect any intrusions or intruders as soon as practicable upon discovery of any such deficiency or intrusion. In the event of any security deficiency or intrusion involving the Creative Application or Madeium User Data, you will make no public statements without prior written and express permission from Madeium in each instance, unless otherwise required by law.

ACCESS TO THE MADEIUM API

Subject to the API Terms, Madeium may, in its sole discretion, make specific instances or versions of the Madeium API available to Creative for use in connection with Creative Applications. Madeium may terminate such access to the Madeium API, in whole or certain features, functions, or services thereof, for convenience, at any time. The Madeium API will be deemed to be a part of the Site Services as set forth in the Madeium Terms of Service.

MADEIUM API SUPPORT AND CHANGES

Madeium may provide technical support, upgrades, or modifications of the Madeium API in Madeium’s sole discretion. Madeium may cease providing technical support, upgrades, or modifications of the Madeium API at any time and for any reason without notice or liability to Creative. Madeium may release new versions of the Madeium API and require Creative to use the new version of the Madeium API. Creative’s use of new releases or versions of the Madeium API will be acceptance of all modifications of the Madeium API.

INTELLECTUAL PROPERTY

- Madeium Materials. Madeium owns all rights, title, and interest, including all intellectual property rights, in and to, the Madeium API; all elements, components, and executables of the Madeium API; and all elements, components, and executables of the Site Services (collectively, the “Madeium Materials”). The only exception to this is any information or Content which you as an Madeium user have licensed to Madeium under the Madeium Terms of Service. Except for the express licenses granted in the API Terms, Madeium does not grant you any right, title, or interest in the Madeium Materials. Creative agrees to take such actions as Madeium may reasonably request to perfect Madeium’s rights to the Madeium Materials.

- Creative Property. Except to the extent the Creative Application contains Madeium Materials, Madeium claims no ownership or control over your Creative Application. During the term of the API Terms you hereby grant Madeium a paid-up, royalty-free, nonexclusive, worldwide, irrevocable right and license, under all of your intellectual property rights, to: (1) use, perform, and display the Creative Application and its content for purposes of marketing, demonstrating, and making the Creative Application available to Madeium users; (2) link to and direct Madeium users to the Creative Application; and (3) sublicense the foregoing rights to our affiliates.

- Feedback. Creative may, but is not required to, provide suggestions, comments, ideas, or know‐how, in any form, to Madeium related to Madeium products, services or technology (“Feedback”). To the extent Creative provides Feedback to Madeium, Creative grants Madeium the right to use such Feedback without any right to compensation from Madeium.

INDEPENDENT DEVELOPMENT BY MADEIUM

Creative understands and acknowledges that Madeium may be independently creating applications, content, and other products or services that may be similar to or competitive with the Creative Application. Nothing in the API Terms will be construed as restricting or preventing Madeium from creating and fully exploiting any applications, content, and other products or services, without any obligation to Creative. This paragraph will survive the termination or expiration of the API Terms.

CONFIDENTIAL INFORMATION

Creative agrees that the content of the Madeium API, and any Madeium Content that by its nature should reasonably be known to be confidential, is deemed to be confidential information of Madeium and Creative will maintain the same in strict confidence and not disclose the same to any third party (other than employees, agents and contractors of Creative for the sole purpose of providing services to Creative to complete work permitted hereunder) or use the same for any purpose other than its performance under the Agreement. To the extent that you retain any Madeium Content after the termination or expiration of the API Terms, this paragraph will survive the termination or expiration of the API Terms.

EFFECT

The provisions of the API Terms will control over any inconsistent provisions of the Madeium Terms of Service, and the Madeium Terms of Service, as modified and supplemented by the API Terms, will remain in full force and effect. Any “shrink wrap” or “click wrap” license agreement or any other terms and conditions associated with Creative’s Application is null and void, is not applicable hereunder, and is expressly excluded.

FEES

Madeium currently provides the Madeium API without charge. However, Madeium reserves the right, at Madeium’s sole discretion, to charge fees for future use of or access to the Madeium API. Creative may not charge any fee to Madeium users for the Creative’s Application without the express written permission or agreement of Madeium.

TERMS AND TERMINATION

- Term. The term of the API Terms will commence on the date upon which you agree to the API Terms and will continue until terminated as set forth below.

- Creative’s Termination Rights. Creative may terminate the API Terms by discontinuing use of the Madeium API and returning all Madeium Content, including Madeium User Data.

- Suspension and Termination. Madeium may suspend or terminate Creative’s use of the Madeium API at any time if we believe you have violated the API Terms or Madeium Terms of Service, or if we believe the availability of the Madeium API in the Creative Application is not in our or our users’ best interests. Immediately upon termination of the API Terms, all licenses granted to Creative will cease and all data retrieved from the Madeium API or Site Services must be deleted.

- Effect of Termination. Upon termination of these Terms:

WARRANTIES AND LIABILITIES

Disclaimer of Warranties. MADEIUM PROVIDES THE MADEIUM API, MADEIUM CONTENT, AND ALL OTHER INFORMATION AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES, EITHER EXPRESS OR IMPLIED, OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, MADEIUM DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. MADEIUM DOES NOT GUARANTEE THAT THE MADEIUM API WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE MADEIUM API MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. MADEIUM DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, MADEIUM DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE MADEIUM API DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.

Limitations of Liability. MADEIUM AND OUR EMPLOYEES, AGENTS, SHAREHOLDERS, OR DIRECTORS, SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, PROFIT, REVENUE OR DATA TO YOU OR ANY THIRD PERSON ARISING FROM YOUR USE OF THE MADEIUM API. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER (i) YOU BASE YOUR CLAIM ON CONTRACT, TORT, STATUTE, OR ANY OTHER LEGAL THEORY, (ii) WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES, OR (iii) THE LIMITED REMEDIES PROVIDED IN THIS SECTION FAIL OF THEIR ESSENTIAL PURPOSE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO ANY DAMAGE THAT MADEIUM MAY CAUSE YOU INTENTIONALLY OR KNOWINGLY IN VIOLATION OF THE API TERMS OR APPLICABLE LAW.

- Indemnification. You will defend, hold harmless, and indemnify Madeium (and our and their respective employees, agents, shareholders, and directors) from any claim or action brought by a third party, including all damages, liabilities, costs and expenses, including reasonable attorneys’ fees, to the extent resulting from, alleged to have resulted from, or in connection with: (i) your breach of your obligations herein; or (ii) the violation of any copyright, trademark, service mark, trade secret or United States patent by the Creative Application.

GENERAL

- Relationship of the Parties. The parties are agreeing to the API Terms as independent contractors, and the API Terms will not be construed to create a partnership, joint venture or employment relationship between them. Neither party is authorized to or will represent itself to be an employee or agent of the other or enter into any agreement on the other’s behalf of or in the other’s name.

- Assignability. You may not assign the API Terms, nor any of your rights or obligations hereunder, without Madeium’s prior written consent. Madeium may freely assign the API Terms without your consent. Any attempted assignment or transfer in violation of this section will be null and void. Subject to the foregoing restrictions, the API Terms will inure to the benefit of successors and permitted assigns of the parties.

- Severability. If and to the extent any provision of the API Terms is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or enforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.

- Choice of Law and Venue. The API Terms and any controversy, dispute or claim arising out of or relating to the API Terms shall be governed by and construed in accordance with the laws of the State of Oregon without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG). With respect to any User located outside the United States, the User agrees that the Oregon state courts of Multnomah County (or, if there is federal jurisdiction, the United States District Court for Portland, Oregon) will have jurisdiction and venue with respect to any claim arising out of or relating to the API Terms and consents to the personal jurisdiction and venue of those courts.

- No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and shall in no way affect that party’s right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.

- Miscellaneous. The API Terms set forth the entire agreement and understanding of the parties relating to their subject matter and cancel and supersede any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them. No modification or amendment to the API Terms shall be binding upon Madeium unless in a written instrument signed by a duly authorized representative of Madeium.