Last Revised: 12/07/2017
These Misty Robotics Developer Terms (these “Terms”) are a legal agreement between you and Misty Robotics, Inc. (“Misty Robotics”, “we”, “our”, or “us”). These Terms govern your access to and use of our application programming interfaces (“API” or the “Misty Robotics API”), software development kits (“SDK” or the “Misty Robotics SDK”) and computer aided design and related mechanical drawings and specifications (“CAD” or the “Misty Robotics CAD”) and any related documentation, materials, code, data, and other Misty Robotics’ owned materials made available to you by Misty Robotics (collectively with the Misty Robotics API, SDK, and CAD, the “Misty Robotics Developer Materials”) to develop skills, features, or functionality (each a “Skill”) or to develop physical electro-mechanical attachments (each an “Accessory”) for Misty Robotics’ products (each a “Product”).
You may use the Misty Robotics API, SDK, CAD and other Misty Robotics Developer Materials only if you can form a binding contract with Misty Robotics, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. In the event that you are agreeing to this Terms on behalf of a third party entity, you represent and warrant that you have sufficient right to bind such third party to these Terms, in which case, all references to “you” in these Terms shall be references to such third party.
BY ACCESSING OR USING THE MISTY ROBOTICS DEVELOPER MATERIALS, YOU AGREE TO BE BOUND BY THESE TERMS.
In the case of inconsistencies between these Terms and information included in Misty Robotics Developer Materials and any other materials related thereto, these Terms will govern and take precedence.
1 Account and Registration. Misty Robotics may now or in the future require you to create a Misty Robotics Developer Account to access and use certain Misty Robotics Developer Materials (your “Account”). You may log into your Account using a unique username and password. You are responsible for safeguarding your password and you agree not to disclose your password to any third party. You are solely responsible for any activities or actions taken under your username, whether or not you have authorized such activities or actions. You agree that the information that you provide to Misty Robotics about yourself upon registration of your Account, and at all other times, (“Registration Data”) will be true, accurate, current and complete, and you further agree that you will maintain and promptly update the Registration Data to ensure that it remains true, accurate, current and complete. You may not impersonate any other person or use a username or password that you are not authorized to use. If you become aware of any unauthorized use of your Account, you agree to notify Misty Robotics immediately at firstname.lastname@example.org
2. Use of the Misty Robotics Developer Materials.
2.1 License. Subject to these Terms, Misty Robotics grants you a personal, limited, revocable, non-exclusive and non-transferable right (without the right to sublicense) to access and use the Misty Robotics Developer Materials, solely to the extent necessary for you to create Skill(s) or Accessory(ies) for a Misty Robotics Product and not for any robot that is competitive with a Misty Robotics Product.
2.2 Permitted Access. You may access and use the Misty Robotics API, SDK, CAD and other Misty Robotics Developer Materials only as expressly permitted by the means described in the documentation or instructions Misty Robotics provides. You will not misrepresent or mask your identity when using the Misty Robotics Developer Materials.
2.3 Open Source Software. Certain items of software included with or required by the Misty Robotics API(s) or SDK(s) may be subject to “open source” or “free software” licenses (“Open Source Software”). Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Misty Robotics makes such Open Source Software, and any Misty Robotics’ modifications to that Open Source Software, available by written request to Misty Robotics at the email or mailing listed below.
2.4 Compliance with Law. You will use the Misty Robotics API, SDK, CAD and other Misty Robotics Developer Materials only as permitted by law (including, without limitation, federal, state, and local laws, criminal statutes, and laws regarding privacy or the import or export of data or software). You will not use the Misty Robotics API, SDK, CAD or other Misty Robotics Developer Materials to encourage or promote illegal activity. You will not knowingly enable end users to violate applicable laws or these Terms.
2.5 Modifications. Misty Robotics may modify or update the Misty Robotics Developer Materials, the Misty Robotics Products, and any software included therein, at any time, for any reason, and without notice to you. Notwithstanding the foregoing, Misty Robotics will use reasonable efforts to notify you in advance of any modification or update that is likely to cause a disruption or failure of any Skill or Accessory. In no event will Misty Robotics be responsible for any disruption or failure in any Skill or Accessory resulting from any such modification or update.
2.6 Your Content. Misty Robotics may allow you to upload content in connection with your use of the Misty Robotics Developer Materials (“Content”). You represent and warrant to Misty Robotics that you are the owner of the copyright to the Content or that you have written permission from the copyright owner to use such Content. You agree to indemnify and hold Misty Robotics harmless for any violation of this provision.
3. Restrictions. Unless otherwise approved in writing by Misty Robotics, you will not use the Misty Robotics API, SDK, CAD or other Misty Robotics Developer Materials to:
- Implement Skills or Accessories or other functionality that interferes with the core functionality of Misty Robotics Products in a manner not authorized or permitted by Misty Robotics.
- Implement Skills or Accessories or other functionality designed to cause harm to any person or property.
- Breach the terms and conditions governing the use of any Misty Robotics Product.
- Harm, defame, abuse, harass, stalk, threaten, endanger the safety, or violate the legal rights (such as rights of privacy and publicity) of any person or encourage any third party to do the same, or implement Skills or Accessories or other functionality designed to do the same.
- Upload, post, transmit or otherwise make available any private, defamatory, obscene, or unlawful Content.
- Create a Skill or Accessory that functions substantially the same as the Misty Robotics API, SDK, CAD or other Misty Robotics Developer Materials and offer it for use by third parties.
- Perform an action with the intent of introducing any viruses, worms, defects, Trojan horses, malware or any items of a destructive nature intended to harm either the Product(s), Skills or Accessories associated with the Product(s) or users of the Product(s).
- Access or control any Product in a manner that could cause any harm, damage, or loss to any third party or property.
- Use the Misty Robotics API, SDK, CAD or other Misty Robotics Developer Materials in violation of any law, rule, or regulation, or in a manner that causes Misty Robotics or any other person to be in violation of the same.
- In addition, you will not (i) interfere with or disrupt the Misty Robotics API, SDK, CAD or the servers or networks providing the Misty Robotics API; (ii) tamper with the security of any of the hardware, software or networks used by Misty Robotics to make the Misty Robotics Developer Materials available or tamper with any customer accounts; (iii) disable, circumvent or avoid any security device, mechanism, protocol or procedure established by Misty Robotics; or (iv) permit others to do any of the foregoing.
4.1 Skills or Accessories. Misty Robotics does not acquire ownership in Skills or Accessories you develop by your use of the Misty Robotics API, SDK, CAD or other Misty Robotics Developer Materials in accordance with these terms.
4.2 Misty Robotics Developer Materials. The Misty Robotics API, SDK, CAD and Misty Robotics Developer Materials, and all intellectual property rights therein, are the sole and exclusive property of Misty Robotics. You do not acquire ownership of any rights in the Misty Robotics API, SDK, CAD or other Misty Robotics Developer Materials. The Misty Robotics Developer Materials and Misty Robotics Products are protected by United States intellectual property laws, including without limitation copyright laws, and international treaty provisions. You will not remove or alter any proprietary notices or marks on the Misty Robotics Developer Materials. You will not reverse engineer or attempt to extract the source code from the Misty Robotics API, SDK other Misty Robotics Developer Materials, or any related software, except to the extent that this restriction is expressly prohibited by applicable law and then in such case, the information derived will be maintained in strict confidence. You also will not sublicense, lease, rent, loan, distribute, sell, transfer or make available the Misty Robotics API, SDK, CAD or other Misty Robotics Developer Materials to any third party except as specifically permitted by these Terms. Misty Robotics Developer Materials are licensed and not sold. Misty Robotics reserves all rights not expressly granted in these Terms.
4.3 Feedback. All suggestions or feedback provided by you to Misty Robotics with respect to the Misty Robotics API, SDK, CAD or other Misty Robotics Developer Materials shall be Misty Robotics’ property. Misty Robotics may use, copy, modify, publish, or redistribute the submission and its contents for any purpose and in any way without any compensation to you. You also agree that Misty Robotics does not waive any rights to use similar or related ideas previously known to Misty Robotics, developed by its employees, or obtained from other sources.
- Suspension and Termination. You may stop using the Misty Robotics API, SDK, CAD or Misty Robotics Developer Materials at any time with or without notice. Misty Robotics reserves the right to suspend or terminate your access to and use of the Misty Robotics Developer Materials, at any time, without notice, for any reason, including but not limited to (a) your breach of these Terms, or any other policies or guidelines set forth by Misty Robotics, or (b) conduct that Misty Robotics believes is harmful to Misty Robotics’ Products, the business of Misty Robotics, or any third party are property. Further, you agree that Misty Robotics shall not be liable to you or any third party for any termination or suspension of your access to the Misty Robotics API, SDK, CAD or Misty Robotics Developer Materials, and any such termination or suspension shall be in addition to any remedies otherwise available to Misty Robotics. Upon any termination or expiration of these Terms or discontinuation of your access to the Misty Robotics API, SDK, CAD or Misty Robotics Developer Materials, you must immediately cease all use of any Misty Robotics Developer Materials and delete all copies thereof. Sections 3 (Restrictions), 4 (Ownership), 5 (Suspension and Termination), 6 (Warranties), 7 (Indemnity; Limitation of Liability), and 8 (General) will survive the termination or expiration of these Terms for any reason.
- Warranties. THE MISTY ROBOTICS DEVELOPER MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OF ANY KIND. MISTY ROBOTICS EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE MISTY ROBOTICS DEVELOPER MATERIALS, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MISTY ROBOTICS MAKES NO WARRANTY THAT THE MISTY ROBOTICS DEVELOPER MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, FIT FOR A PARTICULAR PURPOSE, THAT THE MISTY ROBOTICS DEVELOPER MATERIALS OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE MISTY ROBOTICS DEVELOPER MATERIALS WILL BE AVAILABLE.
Indemnity; Limitation of Liability.
7.1 You agree to indemnify and hold Misty Robotics, its affiliates, and their respective officers, directors, employees and agents, harmless from and against any claims, demands, allegations, or other actions, formal or informal, arising out of or in any way connected with (a) your access to or use of the Misty Robotics Developer Materials; (b) your violation of these Terms; © your violation of any third party right, including without limitation any intellectual property right or any publicity, confidentiality, property or privacy right; (d) any claim that your use of the Misty Robotics Developer Materials caused damage to a third party; or (e) any Skill or Accessory you develop (each a “Claim”). You will pay and/or reimburse Misty Robotics any and all costs, expenses (including attorneys’ fees, costs of litigation, and costs of defense and investigation) damages, amounts awarded in a judgment or settlement, and other losses incurred by Misty Robotics in connection with any such Claim.
7.2 YOU ACKNOWLEDGE THAT YOUR ACCESS TO AND USE OF THE MISTY ROBOTICS DEVELOPER MATERIALS AND ANY RELIANCE THEREUPON IS AT YOUR SOLE RISK AND THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY SERVICING OR REPAIRS OF ANY PRODUCTS OR EQUIPMENT YOU USE IN CONNECTION WITH YOUR USE OF THE MISTY ROBOTICS DEVELOPER MATERIALS. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL MISTY ROBOTICS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, IMAGES, DATA OR OTHER INTANGIBLES, EVEN IF MISTY ROBOTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
7.3 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8.1 Modification. Misty Robotics may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Misty Robotics Developer Materials after the “Last Revised” date at the top of these Terms. Your continued access to or use of the Misty Robotics Developer Materials after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, do not access or use the Misty Robotics Developer Materials.
8.2 Applicable Law and Dispute Resolution. These Terms shall be governed by the laws of the State of Colorado without giving effect to any conflict of laws principles that may require the application of the law of another jurisdiction. If you believe that Misty Robotics has not adhered to these Terms, please contact us by e-mail at email@example.com. We will do our best to address your concerns. Any dispute you and Misty Robotics are unable to resolve may be brought in, and you hereby consent to personal and exclusive jurisdiction of and venue in, the federal and state courts in Denver, Colorado. YOU HEREBY VOLUNTARILY AND INTENTIONALLY WAIVE YOUR RIGHT TO A JURY TRIAL OF ANY DISPUTE, ACTION, CLAIM OR CAUSE OF ACTION, OR OTHER LEGAL PROCEEDING RELATED TO OR ARISING OUT OF THESE TERMS. YOU FURTHER AGREE THAT ANY LEGAL PROCEEDING RELATING TO THESE TERMS WILL BE LIMITED TO THE DISPUTE BETWEEN MISTY ROBOTICS AND YOU INDIVIDUALLY. YOU ACKNOWLEDGE AND AGREE THAT YOU AND MISTY ROBOTICS ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Misty Robotics otherwise agree in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Misty Robotics Developer Materials or these Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred.
8.3 You will not make any statement regarding your use of the Misty Robotics API, SDK, CAD or Misty Robotics Developer Materials that suggests partnership with, sponsorship by or endorsement by Misty Robotics without Misty Robotics’ prior written approval. In the course of promoting, marketing, or demonstrating the Misty Robotics API, SDK, CAD or Misty Robotics Developer Materials, or Misty Robotics Products, Misty Robotics may produce, distribute and use depictions, screenshots, video, or other content from your Skill or Accessory, and may use your company or product name and logos. You hereby grant Misty Robotics all necessary rights for these purposes.
8.4 Independent Development. Provided there is no infringement of your intellectual property rights, these Terms do not impair the rights of Misty Robotics or its subsidiaries and affiliates to develop, manufacture, purchase, use or market, directly or indirectly, alone or with others, products or services competitive with those offered by you.
8.5 Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Misty Robotics as a result of these Terms or use of the Misty Robotics Developer Materials.
8.6 Enforcement. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to reimbursement of its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive from the other party.
8.7 Force Majeure. Misty Robotics will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond Misty Robotics’ reasonable control.
8.8 Waiver. The failure of Misty Robotics to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by Misty Robotics in writing.
8.9 Construction. The headings of Sections of these Terms are for convenience and are not to be used in interpretation.
8.10 Contact. Misty Robotics is located in Boulder, Colorado, USA. Any questions, comments or suggestions, including any report of violation of these Terms should be provided to the Administrator as follows:
- By E-mail: firstname.lastname@example.org
- By Postal Mail: 2540 Frontier Ave., Suite 101, Boulder, CO 80301
8.11 Entire Agreement. These Terms constitute the entire agreement between you and Misty Robotics and govern your use of the Misty Robotics Developer Materials, superseding any prior agreements between you and Misty. The failure of Misty Robotics to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you and Misty Robotics nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms shall remain in full force and effect.