Terms Of Service

Last updated: February 19, 2013

KIVA DEVELOPER TERMS OF SERVICE

By using the Kiva API provided by Kiva Microfunds (“Kiva”), you (the “Licensee”) agree to this Developer Terms of Service (“Agreement”). The following are incorporated by reference into this Agreement: (a) the Kiva Terms of Use (located at http://www.kiva.org/legal/terms) and (b) the Kiva Privacy Policy (located at http://www.kiva.org/legal/privacy). In the event of any irreconcilable conflict between this Agreement and any of the Kiva Terms of Use or Kiva Privacy Policy, the provisions of this Agreement shall govern. This Agreement may be modified by Kiva in its sole discretion from time to time and such modifications shall automatically become part of this Agreement and shall be effective once posted by Kiva on the Kiva Website (as indicated by the posted update date). Your License will be subject to any such modifications. You should review the Website and this Agreement from time to time for any modifications. If you do not agree with any such modifications, please immediately terminate your use of the Licensed API (as defined below), as outlined in Section 11 below.

1. Definitions

"API Materials" means all information, data and materials provided by Kiva in connection with, through or from the Kiva API, including all information, data and images with respect to Kiva users and borrowers.

"Intellectual Property Rights" means, collectively, all patents, copyrights, trade secrets, know-how, trademarks and all other intellectual property or proprietary rights recognized anywhere in the world, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired.

"Kiva API" means the set of web services provided by Kiva at api.kivaws.org for purposes of programmatically accessing data or information in or through the Kiva microlending platform.

"Kiva Websites" means Kiva.org, all subdomains thereof and any other web property owned by Kiva.

"Permitted Purpose" means non-commercial purposes that are consistent with or that further Kiva’s mission, values, goals and/or objectives of reducing global poverty through microfinance. For purposes of illustration, without limitation, applications that: (a) facilitate “community” amongst lenders or that improve the distribution of lender-related information to promote increased community interaction between lenders, (b) facilitate the browsing of borrower listings or the ability of lenders to review borrower profiles of interest (such as by type of business or geographic location), (c) improve the visibility of loan stories and journals, (d) analyze Kiva’s lending data to identify or highlight trends, and/or (e) promote positive innovation or enhance the user experience of users on or visitors to the Kiva website; are examples of applications that fall within the scope of the "Permitted Purpose."

2. Grant of License

Subject to Licensee’s full compliance with all of the terms and conditions of this Agreement, Kiva grants Licensee a non-exclusive, revocable, nonsublicensable, nontransferable license to use the Kiva API and API Materials (collectively referred to as the “Licensed API”) to develop, reproduce and distribute non-commercial applications for the Permitted Purpose (“Developed Applications”). Licensee may not use the Licensed API or any Kiva data, information or materials for any other purpose (including without limitation any commercial purpose) other than the Permitted Purpose without Kiva’s prior written consent. Further, under no circumstances will Licensee benefit commercially or financially from a Developed Application or any Kiva information, data or materials. For the sake of clarity, the sale of advertising on a website where a Developed Application is hosted shall not alone constitute a commercial use under this Agreement, provided that the advertising is not integrated within the Developed Application itself. Further, a Developed Application may not be used to sell advertising and may not be used to promote the sale of advertising in any way.

Licensee may not use the Licensed API for activities that violate any law, statute, ordinance or regulation or this Agreement. For purposes of illustration, without limitation, Licensee shall not use the Licensed API in connection with or to promote any products, services, or materials that constitute, promote or are used for the purpose of dealing in: spyware, adware, bots, crawlers or other malicious programs or code; unsolicited mass distribution of email; multi-level marketing proposals; hate materials; hacking / unauthorized decryption; libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content; stolen products and items used for theft, or to commit phishing or other fraud or to perpetrate scams, including, but not limited to, “phishing” scams; services or programs regulated by state licensing regimes, pyramid or ponzi schemes; activities that involve gambling, gaming and/or any other activity involving chance and/or the opportunity to win a prize, such as a sweepstakes or raffle, or contests and/or money laundering or other illegal / prohibited / fraudulent / not legitimate / improper transfers of funds or transactions. In addition, for purposes of illustration and without limitation, Licensee shall not: (a) misrepresent in any way data, information or materials about or relating to a loan, lender, borrower or Kiva partner, individually or in the aggregate (irrespective of whether such misrepresentation is due to Licensee’ intentional conduct, error or ignorance) and/or (b) misrepresent Licensee’s identity in connection with the Licensed API and Developed Application, including without limitation by soliciting or attempting to solicit any data, information or materials under the pretense of being Kiva. Furthermore, Licensee shall not solicit or attempt to solicit any data, information or materials on behalf of Kiva, unless expressly required by Kiva (for example, to implement the functionality required in Section 5(b) below for Kiva to obtain consent from a user to share certain data about such user with Licensee and the Developed Application), and Licensee shall clearly and prominently communicate to its users that all other data, information and materials collected by Licensee and Licensee’s Developed Application is not on behalf of Kiva.

3. Proprietary Rights

As between Kiva and Licensee, the Licensed API and all Intellectual Property Rights in and to the Licensed API are and shall at all times remain the sole and exclusive property of Kiva and are protected by applicable laws and treaties.

4. Other Restrictions

Except as expressly and unambiguously authorized under this Agreement, Licensee may not (a) copy, rent, lease, sell, transfer, assign, sublicense, disassemble, reverse engineer or decompile (except to the limited extent expressly required by applicable statutory law), modify or alter any part of the Licensed API, or (b) otherwise use the Licensed API on behalf of any third party (other than the intended end users of Licensee’s Developed Application, as permitted under this Agreement). Subject to Licensee’s full compliance with all of the terms and conditions of this Agreement, Kiva grants Licensee a non-exclusive, revocable, nonsublicensable, nontransferable license during the term of this Agreement to display the Kiva trade names, trademarks, service marks, and logos (collectively, “Kiva API Marks”), if any, that Kiva makes available to Licensee, in Kiva’s sole discretion, to promote or advertise Licensee’s integration of the Kiva API in Licensee’s Developed Application. Licensee agrees that Licensee’s use and display of Kiva API Marks will at all times be consistent with branding guidelines provided by Kiva to Licensee and shall not identify or attempt to identify any product or Developed Application as being endorsed, approved by or produced by Kiva. No rights or licenses are granted except as expressly and unambiguously set forth herein.

Licensee must not expose any Kiva lender, borrower or field partner to harm, as determined by Kiva in Kiva’s sole discretion. Licensee must not include functionality that proxies, requests or collects Kiva usernames or passwords. Licensee must not circumvent intended limitations on Kiva Website features and functionality. Licensee will only request API Materials that Licensee needs to operate its Developed Application. Licensee will not directly or indirectly transfer or share any API Materials, including without limitation lender data or usernames, to (or use such API Materials in connection with) any third party (other than the intended end users of Licensee’s Developed Application, as permitted under this Agreement). Licensee is responsible for all activities that occur in connection with Licensee’s access or right to access the Licensed API. Licensee must not combine API Materials with other data, information or materials obtained from Kiva or any Kiva Website through any means outside the Kiva API, including without limitation scraping Kiva Websites, except through unexpired data snapshots provided by Kiva at build.kiva.org and as may be otherwise expressly permitted by Kiva in writing. If Licensee requires data, information or materials from Kiva or any Kiva Website that is not provided through the Kiva API or unexpired data snapshots, please contact build_kiva@kiva.org. Licensee shall not interfere with or disrupt the Kiva API, Kiva Websites or other Kiva services, products and systems. Kiva reserves the right, in Kiva’s sole discretion, at any time to terminate the Kiva API, limit the number of network calls that Licensee’s Developed Application may make via the Kiva API, and change features of the Kiva API, including without limitation the API Materials that may be accessed.

5. Conditions to Non-Public Data; Write Ability

If Licensee has access to or has the right to access any Kiva API that grants access or read rights to any API Materials that are not otherwise available to the general public on the Website (e.g., data returned from end-points starting with https://api.kivaws.org/v1/my or https://api.kivaws.org/partner) (“Non-Public Data”), or granting the ability to write any data, information or materials from or to Kiva accounts or Kiva Websites through the Licensed API (collectively, “Non-Public Functionality”), Licensee must comply with the following provisions as a condition to Licensee’s right to access the Non-Public Functionality and Non-Public Data.

(a) Licensee shall sign up for a Developer Account with Kiva, submit accurate Developer Account information regarding Licensee and keep up-to-date such information.

(b) Licensee shall include functionality in Licensee’s Developed Application for Kiva to obtain clear, express consent from each user using such a Developed Application for Licensee and its Developed Application to take all actions of which the Developed Application is capable of taking, including without limitation, retrieving Non-Public Data that is specific to such user or writing data to such user’s account. Such consent will be obtained in connection with the user’s first use of the Developed Application, but if the capabilities of the Developed Application are materially expanded, the consent of such user shall be obtained prior to the user’s additional use of the Developed Application. Licensee shall strictly comply with the scope of express consent that the applicable user has granted. A user may revoke its consent at any time by logging into the user’s account on the applicable Kiva Website or by contacting Kiva, and Licensee shall immediately respect any such revocation. Licensee shall not obfuscate or hide any Kiva functionality, including without limitation consent or authorization flows.

(c) Licensee shall use Licensee’s best efforts to use, store and retain the API Materials only for the duration of the current usage session of the user for which it was obtained, and in no event more than thirty (30) days from the date that Licensee received such API Materials. Licensee shall use Licensee’s best efforts to use and display the most up-to-date API Materials in or through Licensee’s Developed Application. Licensee shall not use the API Materials for any purpose outside of the Developed Application. Licensee will delete all data, materials or information that Licensee received from Kiva concerning any person or entity if such person or entity asks Licensee to do so, and Licensee will provide an easily accessible mechanism for making such a request.

(d) Licensee shall maintain its own terms of service and privacy policy applicable to users of such Developed Application (collectively, “Licensee Terms”), which Licensee Terms shall specify, at a minimum, what data Licensee and the Developed Application collect and how Licensee and the Developed Application use, display, share, transfer and dispose of such data. Licensee shall comply with such Licensee Terms and prominently identify and link to such Licensee Terms at those locations where the applicable Developed Application is downloadable or accessible and in the Developed Application. Licensee shall promptly notify Kiva of any breaches of Licensee Terms by Licensee.

(e) Licensee’s Developed Application must offer each user an explicit “Log Out” option that ends the current user session of the Developed Application.

(f) Licensee shall properly configure its networks, operating system and software (collectively, “Systems”) to Internet industry standards, as required to securely operate its Developed Application. Licensee shall maintain the confidentiality of all usernames, passwords, tokens and API Materials available through or associated with its Developed Application, including without limitation any tokens granted by Kiva to Licensee for accessing the Licensed API (“Developer Secret Keys”). Licensee shall not give any of its Developer Secret Keys to any third party or permit any third party to use any of Licensee’s Developer Secret Keys. Licensee shall not allow any third party to see Non-Public Information, other than the Kiva user to which the Non-Public Information is associated, as determined by Kiva in Kiva’s sole discretion. Licensee shall promptly report to Kiva in writing via email to build_kiva@kiva.org any security deficiencies in or intrusions to its Systems that it discovers, shall work with Kiva to immediately correct any security deficiency, and shall disconnect immediately any intrusions or intruder.

(g) Non-Public Data must not be cached on the client for longer than the session it is used for and, in any event, no longer than a maximum of 24 hours.

6. Additional Licensee Obligations

Licensee agrees: (a) that its Developed Application will preserve the dignity of all persons, including without limitation persons seeking loans represented, described or listed on the Kiva Websites, (b) that its Developed Application will clearly indicate that such Developed Application was not developed by Kiva and is not endorsed by Kiva, and (c) that any images obtained from or through the Licensed API and used in a Developed Application will be linked via hyperlink to the loan detail page (or original image if not a loan image) on Kiva’s image servers unless such linking is not technically feasible. License further agrees to preserve (and not obscure or cover) all copyright notices and other proprietary rights notices on content that Kiva makes available to Licensee via the Licensed API and to provide proper attribution for all such content. For purposes of illustration and without limitation, if, for example, Licensee develops an application that provides a graph using data provided by Kiva, Licensee must accurately state that the data Licensee used comes from Kiva. Licensee shall assist Kiva in verifying Licensee’s compliance with this Agreement by providing Kiva information about Licensee’s Developed Application, including without limitation providing Kiva access to such Developed Application and materials related to the Developed Application. Licensee shall also ensure that, when posting a basket to the Kiva site via the Developed Application, the suggested optional donation amount of 15% is preserved.

7. Disclaimers

THE LICENSED API IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, KIVA AND ITS LICENSORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE LICENSED API, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, AVAILABILITY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. FURTHER, KIVA DOES NOT WARRANT AND DISCLAIMS ANY AND ALL WARRANTIES THAT LICENSEE’S USE OF THE LICENSED API WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE AGREES THAT ALL USE OF THE LICENSED API WILL BE AT LICENSEE’S SOLE RISK. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE, AND LICENSEE MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

Licensee understands and acknowledges that Kiva may be independently creating applications, content and other products or services that may be similar to or competitive with Licensee’s Developed Application, and nothing in this Agreement will be construed as restricting or preventing Kiva from creating and fully exploiting such applications, content and other products and services, without any obligation to Licensee.

8. Support and Upgrades

This Agreement does not entitle Licensee to any support for the Licensed API, unless Licensee makes separate arrangements with Kiva in a writing that is signed by Kiva and Licensee, and Licensee pays all fees associated with such support. Any such support provided by Kiva shall be subject to the terms of this Agreement. Please contact build_kiva@kiva.org with any questions and comments regarding the Kiva API.

9. Limitation of Liability

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL KIVA OR ITS LICENSORS, BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY UNDER ANY TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY LOST PROFITS, LOST OR CORRUPTED DATA, COMPUTER FAILURE OR MALFUNCTION, INTERRUPTION OF BUSINESS, OR OTHER DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE LICENSED API, EVEN IF KIVA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM. IN ADDITION, KIVA DISCLAIMS ALL LIABILITY OF ANY KIND OF KIVA’S LICENSORS. LICENSEE AGREES THAT KIVA SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY USE LICENSEE MAKES OF THE LICENSED API.

10. Indemnification

Licensee shall indemnify, defend and hold harmless Kiva and its licensors from any and all claims, actions, suits, proceedings, losses, expenses, damages, liabilities, costs and fees (including reasonable attorneys’ fees) arising in connection with or relating to Licensee’s use of the Licensed API and arising in connection with or relating to any Developed Application.

11. Term and Termination

This Agreement shall continue until terminated as set forth in this Section. Either party may terminate this Agreement at any time, for any reason, or for no reason, including but not limited to, termination by Kiva if Licensee violates any provision of this Agreement or if the exercise of the rights granted hereunder by Licensee is inconsistent with or is in conflict with Kiva’s mission, values, goals or objectives. Any termination of this Agreement shall also terminate the license granted hereunder. Upon termination of this Agreement for any reason, Licensee shall: (a) destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Licensed API, (b) shall so certify to Kiva that such actions have occurred, and (c) cease using and will cease distribution of its Developed Application. Kiva shall have the right to inspect and audit Licensee’s facilities to confirm the foregoing. Sections 3, 7, 9, 10, 11, 13, 14 and 15 shall survive termination of this Agreement.

12. Government Use

If Licensee is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Licensed API is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Licensed API is a “commercial item,” “commercial computer software” and “commercial computer software documentation,” respectively. In accordance with such provisions, any use of the Licensed API by the Government shall be governed solely by the terms of this Agreement. Manufacturer is Kiva Microfunds.

13. Export Controls

Licensee shall comply with all relevant export laws and restrictions and regulations of the United States including but not limited to those of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, as well as those of foreign agencies or authorities, and Licensee shall not export, or allow the export or re-export of the Licensed API or any Developed Application in violation of any such restrictions, laws or regulations. Licensee will also not use the Licensed API for any purpose prohibited by such laws, restrictions or regulations (including but not limited to nuclear, chemical or biological weapons proliferation). By using the Licensed API, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.

14. Governing Law; Resolution of Disputes; Arbitration and Waivers

This Agreement is governed by the laws of the State of California, USA, without regard to its choice of law or conflict of law provisions. If any dispute arises between Licensee and Kiva, including, without limitation, any dispute arising from or relating to the Kiva API, Licensed API and any Developed Application, Licensee agrees that all such disputes will be determined exclusively by final and binding arbitration, in accordance with the then existing commercial rules of the American Arbitration Association in San Francisco if the amount claimed is greater than $100 and otherwise over the telephone or in another city in which Kiva is located. The arbitration shall be heard and adjudicated by one arbitrator to be selected by Licensee and Kiva. Any award will be final, binding and conclusive upon the parties, subject only to judicial review provided by California statute, and a judgment rendered on the arbitration award can be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either Licensee or Kiva may seek any injunctive relief in a state or federal court in San Francisco, California, as may be necessary to preserve rights pending the completion of arbitration and Kiva may seek any injunctive relief in a state or federal court in San Francisco, California, or another court of competent jurisdiction, at any time against any violations of Sections 2 through 6.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, BY AGREEING TO SUBMIT ALL DISPUTES TO BINDING ARBITRATION, LICENSEE AND KIVA HEREBY WAIVE THEIR RIGHTS TO A JURY OR COURT TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY CONTEMPLATED USE HEREIN, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS, EXCEPT AS SPECIFICALLY PROVIDED ABOVE.

15. Miscellaneous

This Agreement constitutes the complete and entire agreement between Licensee and Kiva pertaining to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings with respect to such subject matter. This Agreement may be amended or modified only by a writing executed by Kiva. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable for any reason, that provision of the Agreement will be reformed to the extent necessary to make it enforceable or will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect. The failure of Kiva to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Kiva’s rights with respect to such breach or any subsequent breaches. Any waiver of any provision of this Agreement by Kiva will be effective only if in writing and signed by Kiva. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever (including without limitation, by operation of law, merger, reorganization, or as a result of an acquisition or change of control involving Licensee) without Kiva’s prior written consent and any action or conduct in violation of the foregoing shall be null and void and without effect. Kiva expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.

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