Digits Kit Agreement
Last Updated: 5/8/2015
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE AGREE BUTTON OR BY ACCESSING OR USING THE DIGITS KIT TECHNOLOGY, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE DIGITS KIT TECHNOLOGY.
This Digits Kit Agreement (“Agreement”) is entered into by Twitter, Inc., on behalf of itself and its worldwide affiliates (“Twitter”) and you (“Developer” or “You”) and governs Your access and use of the Digits Kit Technology (defined below). If You are accessing or using the Digits Kit Technology on behalf of a company or other legal entity, You represent and warrant that You are an authorized representative of that entity and have the authority to bind such entity to this Agreement, in which case the terms “Developer” and “You” shall refer to such entity. You and Twitter hereby agree as follows:
In addition to terms defined elsewhere in this Agreement, the terms set forth immediately below have the following meanings.
“Application” means any mobile application of Developer into which Digits Kit may be integrated.
“Developer Terms” means the Twitter Developer Agreement located at https://dev.twitter.com/overview/terms/agreement and the Twitter Developer Policy located at https://dev.twitter.com/overview/terms/policy, and all terms and conditions incorporated by reference therein.
“Documentation” means the documentation, instructions, user guides, and other documents made available by Twitter that relate to Digits Kit.
“End User” means any end user of any Digits Kit Application.
“End User Data” means any data collected by Twitter about any End User or End User device via any Digits Kit Application, including the name and app store identifier of such Digits Kit Application, IP addresses, unique device identifiers, device operating system, device type, phone numbers, email addresses, address book contact information, and specific event data (such as authentication attempts or other End User interactions with Digits Kit Services, and time stamps associated with those events).
“Term” means the term of this Agreement, which commences on the date upon which You enter into this Agreement and continues until terminated by You or Twitter.
“Twitter API” means any Twitter application programming interface (“API”) included within Digits Kit and the related documentation, data, code, and other materials provided by Twitter with such API, including any modifications or updates thereto.
“Digits Kit” means the Digits software development kit made available for Applications that enables access to Digits Kit Services, including any Twitter API, or other software, data, code, and other materials included therein, and any updates or modifications thereto.
“Digits Kit Application” means any Application into which Digits Kit has been integrated.
“Digits Kit Services” means any features or functionality made available by Twitter via a Digits Kit Application, including any account authentication or other functionality.
“Digits Kit Technology” means Digits Kit, Digits Kit Services, and Documentation.
“Usage Data” means all information and data, not including any End User Data, accessed by Twitter in connection with Developer’s access and use of the Digits Kit Technology, including without limitation uptime, reliability, traffic, network quality, and other Developer usage statistics related to the Digits Kit Technology.
Developer acknowledges that Twitter may update or modify any component of the Digits Kit Technology at any time and in its sole discretion without prior notice to Developer. Developer acknowledges that future versions of Digits Kit may be incompatible with Applications developed using previous versions of Digits Kit, which may adversely affect the manner in which Developer accesses or communicates with Digits Kit. Twitter may provision any updates to Digits Kit automatically or it may prompt Developer to install such updates. If Twitter prompts Developer to install an updated version of Digits Kit (“Updated Version”), the license granted under Section 2.1 of this Agreement (“License”) with respect to any previous version of Digits Kit (“Previous Version”) will be revoked upon release of such Updated Version and Developer will immediately discontinue all use of, and delete, such Previous Version unless such Previous Version has been incorporated within a Digits Kit Application that Developer (a) has publicly distributed via an app store as of the date on which Twitter released the Updated Version (“Release Date”), (b) has already submitted to an app store for distribution approval as of the Release Date, or (c) submits to an app store for distribution approval within fourteen (14) days of the Release Date. Notwithstanding the foregoing, Twitter reserves the right, at any time, to revoke the License to any Previous Version, regardless of the foregoing conditions, in which case Developer shall immediately discontinue all use of, and delete, such Previous Version.
Developer is fully responsible for any Digits Kit Application, including for maintaining the security of any such Digits Kit Application. Developer will use industry standard security measures to prevent unauthorized access or use of any of the features and functionality of any such Digits Kit Application, including access by viruses, worms, or any other harmful code or material. Developer will immediately notify Twitter if Developer knows of or suspects any breach of security or potential vulnerability of any such Application that may damage, interfere with or otherwise impact the Digits Kit Technology. Developer will promptly remedy such breach or potential vulnerability.
Developer shall comply with (a) all applicable laws, rules, and regulations, (b) all instructions and requirements set forth in any applicable Documentation, and (c) any applicable third-party terms, including any third-party terms applicable to Developer’s development and distribution of its Application via any relevant mobile operating system platform. Developer will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, Digits Kit or technical information obtained under this Agreement, including without limitation any Documentation: (y) without compliance with any laws applicable to the export or re-export of Digits Kit or technical information obtained under this Agreement, or (z) to any country to which the United States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, prohibits the export or re-export of Digits Kit and/or technical information.
From time to time, Twitter may solicit from Developer or Developer may provide, in its sole discretion, suggestions for changes, modifications, or improvements or any other feedback related to any Digits Kit Technology or Twitter (collectively, “Developer Feedback”). All Developer Feedback shall be solely owned by Twitter (including all intellectual property rights therein and thereto) and shall also be deemed Twitter’s Confidential Information. Developer hereby assigns all of its right, title, and interest in and to any Developer Feedback to Twitter and acknowledges and agrees that Twitter has the unrestricted right to use and exploit such Developer Feedback in any manner, without attribution, and without any obligations or compensation to Developer.
Developer is solely responsible for providing all modems, servers, devices, storage, software, databases, network and communications equipment, and ancillary services needed to connect to, access or otherwise use the Digits Kit Technology (collectively, “Developer Systems”). Developer shall ensure that Developer Systems are compatible with any Digits Kit Technology and comply with all configurations and specifications described in the applicable Documentation.
Twitter reserves the right to discontinue or suspend (permanently or temporarily) the Digits Kit Technology or any features or portions thereof without prior notice. Twitter will not be liable for any suspension or discontinuance of the Digits Kit Technology or any part thereof.
(a) “Confidential Information” means any information disclosed by Twitter to Developer that is marked or otherwise identified as “confidential” or “proprietary,” or by its nature or the circumstances of disclosure should reasonably be understood to be confidential. In particular, Confidential Information shall include the Digits Kit Technology and all related information. Developer may use the Confidential Information only as necessary in fulfilling its obligations or exercising its rights under this Agreement. Developer may not disclose any Confidential Information to any third party without Twitter’s prior written consent. Developer will protect Confidential Information from unauthorized use, access, and disclosure in the same manner that it protects its own confidential and proprietary information of a similar nature, but in no event with less than a reasonable degree of care. Promptly upon Twitter’s request at any time, Developer shall return all tangible Confidential Information, and/or permanently erase all Confidential Information from any storage media and destroy all information, records, copies, summaries, analyses, and materials developed therefrom.
(b) Limitations. The foregoing obligations shall not apply to any information that Developer can demonstrate is (i) already known by it without restriction, (ii) rightfully furnished to it without restriction by a third party not in breach of any obligation of this Agreement or any other applicable confidentiality obligation or agreement, (iii) generally available to the public without breach of this Agreement or wrongdoing by any party, or (iv) independently developed by it without reference to or use of any information deemed confidential under this section and without any violation of any obligation of this Agreement. Developer shall be responsible for any breach of confidentiality by its employees, contractors, and agents, as applicable. Nothing herein shall prevent Developer from disclosing any Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement, or similar requirement or investigation; provided, however, prior to any such disclosure, Developer shall use reasonable efforts to promptly notify Twitter in writing of such requirement to disclose, and cooperate in protecting against or minimizing any such disclosure and/or obtaining a protective order.
Twitter retains all right, title, and interest in and to any Usage Data. Twitter and its suppliers own all right, title, interest, copyright, and other intellectual property rights in the Digits Kit Technology (and any derivative works and enhancements thereof developed by or on behalf of Twitter) and reserve all rights not expressly granted to Developer in this Agreement. The Digits Kit Technology (and any derivative works and enhancements thereof developed by or on behalf of Twitter) are protected by copyright and other intellectual property laws and treaties. THE DIGITS KIT TECHNOLOGY IS LICENSED AS SET FORTH IN SECTION 2, NOT SOLD.
Developer represents and warrants to Twitter that: (a) the Digits Kit Applications do not and will not infringe any intellectual property or other proprietary right of any third party or violate any right of or duty owed to any third party (including contract rights, privacy rights, and publicity rights); (b) the Digits Kit Applications and Developer’s performance under this Agreement (including use of the Digits Kit Technology) do not and will not violate any applicable law, rule, or regulation, including without limitation the Telephone Consumer Protection Act; and (c) it will not utilize the Digits Kit Technology to communicate with End Users in any manner, including via SMS, telephone call, or email, except to the extent that the End User consented to receive such communication via an unmodified version of the Twitter-provided End User interface for the Digits Kit Technology.
THE DIGITS KIT TECHNOLOGY IS PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TWITTER AND ITS PARENTS, SUBSIDIARIES, AFFILIATES, RELATED COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, AND LICENSORS (COLLECTIVELY, THE “TWITTER ENTITIES”) MAKE NO REPRESENTATION OR WARRANTY (I) THAT THE DIGITS KIT TECHNOLOGY OR RESULTS THEREFROM WILL MEET DEVELOPER’S REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, BUG-FREE, OR VIRUS-FREE, (II) REGARDING THE RELIABILITY, TIMELINESS, OR PERFORMANCE OF THE DIGITS KIT TECHNOLOGY, OR (III) THAT ANY ERRORS IN THE DIGITS KIT TECHNOLOGY CAN OR WILL BE CORRECTED. THE TWITTER ENTITIES HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE, OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
(a) Developer. Developer will indemnify, defend, and hold harmless the Twitter Entities from all claims, actions, suits, or proceedings, as well as any and all losses, liabilities, damages, costs, and expenses (including reasonable attorney’s fees), whether actual or alleged (collectively, “Claims”), that arise out of or in connection with Developer’s (a) access or use of the Digit Kit Technology; (b) actual or alleged infringement, misappropriation, or violation of the rights of any third party, including without limitation any intellectual property rights, privacy rights, or publicity rights; and (c) breach of any term of this Agreement, including without limitation Developer’s representations and warranties set forth in Section 13 above. Developer is solely responsible for defending any Claim against the Twitter Entities, subject to such Twitter Entities’ right to participate with counsel of its own choosing, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against the Twitter Entities, provided that Developer will not agree to any settlement related to any Claims without the Twitter Entities’ prior express written consent regardless of whether or not such settlement releases the Twitter Entities from any obligation or liability.
(b) Twitter. Twitter will defend claims, suits, or actions brought against Developer by a third party solely to the extent that such claims, suits, or actions arise from an allegation that the Digits Kit Technology, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party (“Developer Claim”). In addition, if Twitter receives prompt notice of a Developer Claim that, in Twitter's reasonable opinion, is likely to result in an adverse ruling, then Twitter may (i) obtain a right for Developer to continue using the Digits Kit Technology at issue; (ii) modify such Digits Kit Technology to make it non-infringing; (iii) replace such Digits Kit Technology with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Digits Kit Technology. Notwithstanding the foregoing, Twitter will have no obligation under this Section 15(b) or otherwise with respect to any infringement claim based upon: (a) any use of the Digits Kit Technology not expressly permitted under this Agreement; (b) any use of the Digits Kit Technology in combination with products, equipment, software, or data not made available by Twitter if such infringement would have been avoided without the combination with such other products, equipment, software, or data; (c) any modification of the Digits Kit Technology by any person other than Twitter or its authorized agents or subcontractors; or (d) any claim not clearly based on the Digits Kit Technology itself. This Section 15(b) states the Twitter Entities’ entire liability and Developer’s sole and exclusive remedy for all third party claims. The foregoing obligations are conditioned on Developer: (x) promptly notifying Twitter in writing of such Developer Claim within 15 business days of receiving the claim; (y) giving Twitter, where requested, sole control of the defense thereof and any related settlement negotiations; and (z) Developer fully cooperating and assisting in such defense.
(a) IN NO EVENT WILL THE TWITTER ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FOR ANY DAMAGES ASSOCIATED WITH LOSS OF USE, BUSINESS, PROFITS OR GOODWILL, OR FOR INTERRUPTION, LOSS OR CORRUPTION OF DATA OR NETWORKS.
(b) IN NO EVENT WILL THE TWITTER ENTITIES’ AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS UNDER THIS AGREEMENT EXCEED FIFTY($50.00) DOLLARS (USD).
(c) THE FOREGOING LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ANY AND ALL CLAIMS, REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.
Either party may terminate this Agreement with or without cause immediately upon providing notice to the other party. Upon any termination of this Agreement, (a) Developer must discontinue accessing and using the Digits Kit Technology and delete all copies of Digits Kit and any Documentation; (b) the provisions in Sections 6 (Additional Terms), 7 (End Users), 8 (Developer Feedback), 11 (Confidentiality), 12 (Ownership; Reservation of Rights), 14 (Twitter Disclaimers), 15 (Indemnification), 16 (Limitation of Liability), this Section 17 (Termination) and Section 18(e) (Governing Law; Arbitration; Prevailing Fees) shall survive; (c) all obligations or liabilities that accrued prior to the effective date of termination and all remedies for breach of this Agreement shall survive; and (d) all other rights, obligations, and licenses of the parties under this Agreement shall terminate.