Last updated: December 8, 2023
- Acknowledgement
These are the Terms of Service governing the use of OpenPool’s API Service and the agreement that operates between You and the Company. These Terms set out Your rights and responsibilities when accessing our application programming interfaces, software development kits, sample codes, command line tools, developer tools and other related documentation and materials made available by OpenPool, including any Updates thereof (collectively, “OpenPool APIs”). Please read them carefully. Your access to and use of the API Service is conditioned on Your acceptance of and compliance with these Terms. These Terms apply to all visitors, users, and others who access or use the API Service. By accessing or using the API Service, You agree to be bound by these Terms.
If you are entering into the API Terms on behalf of a company or other legal entity, You represent that You have the authority to bind such entity to the API Terms. In that case, the terms “You” or “your” shall also refer to such entity. If You do not have such authority, or if You do not agree with the API Terms, You shall refrain from using the API Service.
2. Definitions
The words of which the initial letter is capitalized have meanings defined under the following conditions. The following definitions shall have the same meaning regardless of whether they appear in singular or plural.
2.1. API Service (also referred to as “OpenPool APIs”, “APIs” or “Service”) refers to the application programming interfaces, software development kits, sample codes, command line tools, developer tools and other related documentation and materials made available by OpenPool Inc.
2.2. Applications means any applications or services created by You to interact with the OpenPool APIs.
2.3. Brand Guidelines means the guidelines and requirements relating to all use of the OpenPool Branding, as provided by OpenPool to You from time to time in connection with the use of the OpenPool APIs and the Applications.
2.4. CCPA refers to the California Consumer Privacy Act (the "CCPA") as amended by the California Privacy Rights Act of 2020 (the "CPRA").
2.5. Company (also referred to as “OpenPool”, "the Company", "We", "Us" or "Our" in this Agreement) refers to OpenPool, Inc., 7 Ridge Drive East, Great Neck, NY, 11021.
2.6. Data Services means the services to be supplied by OpenPool Inc. under the API Terms including the supply of the OpenPool Data.
2.7. Derived Data means any data resulting from the OpenPool Data (wholly or in part) that has been manipulated to such a degree that it (a) cannot be identified as originating or deriving directly from the OpenPool Data and cannot be reverse-engineered such that it can be so identified; and (b) is not capable of use substantially as a substitute for the OpenPool Data.
2.8. GDPR refers to EU General Data Protection Regulation.
2.9. OpenPool API Key means the security key OpenPool Inc. makes available for You to access the OpenPool APIs.
2.10. OpenPool Branding means all OpenPool proprietary trademarks, logos or other branding provided or made available by OpenPool to You from time to time for use pursuant to these API Terms.
2.11. OpenPool Data means the data and information that are provided by OpenPool through Your use of the OpenPool APIs.
2.12. Permitted Purpose shall mean (a) business use, which shall not include the use of any of the Data Services or OpenPool Data by any person other than You or Your representatives, as necessary; (b) purposes of displaying or otherwise making available for viewing on a website or through an application; (c) purposes of developing, reproducing, and manipulating the OpenPool Data and/or creating the Derived Data and distributing or otherwise making available such data to end-users.
2.13. Terms of Service (also referred to as “API Terms” or "Terms") mean these Terms of Service between You and the Company regarding the use of the API Service.
2.14. You (also referred to as “Customer”) means the individual or organization accessing or using the API Service, or the company, or other legal entity on behalf of which such individual is accessing or using the API Service, as applicable.
2.15. Updates means any updates, bug fixes, patches, or other error corrections to the OpenPool APIs that OpenPool generally makes available free of charge to all licensees of the OpenPool APIs.
3. License
3.1. License Grants.
Subject to your compliance with the API Terms, OpenPool hereby grants You a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to: (a) access and use the OpenPool APIs for the purposes of receiving the Data Services and accessing and using the OpenPool Data; (b) access, use, store, view, copy, or create derivative works of the OpenPool Data for business purposes, in each case for the Permitted Purpose only, subject at all times to compliance with the provisions of the API Terms (including Section 3.2); and (c) display certain OpenPool Branding in compliance with the Brand Guidelines.
3.2. Use Restrictions.
You shall not use the OpenPool APIs or any OpenPool Branding for any purposes beyond the scope of the license granted in the API Terms. Without limiting the foregoing and except as expressly set forth in the API Terms, you shall not at any time, and shall not permit others to:
a) copy, modify, or create derivative works of the OpenPool APIs, in whole or in part
b) distribute, rent, lease, lend, sell, sub-license, assign, publish, transfer, or otherwise make available the OpenPool APIs;
c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain unauthorized access to any software component of the OpenPool APIs, in whole or in part;
d) remove any proprietary notices from the OpenPool APIs;
e) use the OpenPool APIs in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
f) combine or integrate the OpenPool APIs with any software, technology, services, or materials not authorized by the Company;
g) design or permit the Applications to disable, override, or otherwise interfere with any implemented communications to end-users, consent screens, user settings, alerts, warnings, or the like;
h) design or permit the Applications to transmit any viruses or other computer programming that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system or data;
i) use the OpenPool APIs in any of the Applications to replicate or attempt to replace the user experience of the OpenPool services; or
j) attempt to cloak or conceal your identity or the identity of the Applications when requesting authorization to use the OpenPool APIs.
k) permit direct or indirect access to or use the API Services in a way that circumvents a usage or capacity limit of the API Services
l) use OpenPool in any way that violates any applicable federal, state, local, or international law or regulation
3.3. Terms
OpenPool’s Privacy Policy and Disclaimer (“OpenPool Terms”), as posted and available on OpenPool’s website at https://www.openpool.co, which may be updated from time to time at OpenPool’s discretion, are hereby incorporated by reference. You represent and warrant that you have read and hereby agree to the OpenPool Terms. The API Terms and granted license under the API Terms shall be fully subject to all of the terms and conditions of the OpenPool Terms. Capitalized terms not defined in the API Terms have the meanings given in the OpenPool Terms.
3.4. OpenPool’s Right to Modification
OpenPool may change at any time, with as much prior notice to You as is reasonably practicable, any or all of (i) the content, format or nature of the Data Services and the OpenPool Data; (ii) the OpenPool APIs; and (iii) the OpenPool Branding and Branding Guidelines; provided that if any such revision to the Data Services or OpenPool Data is deemed to reduce the features or functionality used by You, OpenPool shall provide You with reasonable prior notice.
3.5. Reservation of Rights
OpenPool reserves all rights not expressly granted to You in the API Terms. Except for the limited rights and licenses expressly granted under the API Terms, nothing in the API Terms grants to You or any third-party, by implication, waiver, estoppel, or otherwise, any intellectual property rights or other right, title, or interest in or to the OpenPool APIs.
4. Your Responsibilities.
As a user of the OpenPool APIs, You shall:
a.) be responsible and liable for all uses of the OpenPool APIs resulting from access provided by You, directly or indirectly, whether such access or use is permitted by or in violation of the API Terms. Without limiting the generality of the foregoing, You are responsible for all acts and omissions of your end-users in connection with the Applications and their use of the OpenPool APIs, if any. Any act or omission by your end-user that would constitute a breach of the API Terms if taken by You will be deemed your breach of the API Terms. You shall take reasonable efforts to make all of your end-users aware of the provisions of the API Terms as applicable to such end-user's use of the OpenPool APIs and OpenPool Data and shall cause end-users to comply with such provisions;
b.) obtain an OpenPool API Key through the registration process available at https://docs.openpool.co to use and access the OpenPool APIs. You may not share the OpenPool API Key with any third-party, shall keep the OpenPool API Key and all log-in information secure and confidential, and shall use the OpenPool API Key as your sole means of accessing the OpenPool APIs. OpenPool may change any OpenPool API Key on notice to You at any time;
c.) comply with all terms and conditions of the API Terms, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on the OpenPool Terms from time to time. You shall monitor the use of the Applications for any activity that violates applicable laws, rules, and regulations or any terms and conditions of the API Terms, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of the Applications from further use of the Applications. You are solely responsible for posting any privacy notices and obtaining any consents from your end-users required under applicable laws, rules, and regulations for their use of the Applications;
d.) comply with limitations on access, calls and use of the OpenPool APIs, or refrain from using the OpenPool APIs in a manner that exceeds reasonable request volume or constitutes excessive or abusive usage;
e.) use commercially reasonable efforts to safeguard the OpenPool APIs and OpenPool Branding (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. You will promptly notify OpenPool if You become aware of any infringement of any intellectual property rights in the OpenPool APIs or OpenPool Branding and will fully cooperate with OpenPool in any legal action taken by OpenPool to enforce OpenPool’s intellectual property rights; and
f.) ensure that Your use of the OpenPool Branding, if any, will comply with the Brand Guidelines. You agree that your use of the OpenPool Branding in connection with the API Terms will not create any right, title, interest in or to the OpenPool Branding in your favor and all goodwill associated with the use of the OpenPool Branding will inure to the benefit of OpenPool.
5. Support and Updates
5.1. Support
OpenPool provides You with the support services as described in the OpenPool API’s development documents or in a separate document that OpenPool agrees to with its customers.
5.2. Updates
OpenPool provides You with the Updates, each of which is a part of the OpenPool APIs and is subject to the terms and conditions of the API Terms. You acknowledge that OpenPool may require You to obtain and use the most recent version of the OpenPool APIs.
6. Beta Services
From time to time, OpenPool may offer services identified as beta, pilot, developer preview, no/n-production, evaluation or by a description of similar import ("Beta Services"). You may accept or decline Beta Services. If accepted by You, Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by You for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. OpenPool may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. All beta services are provided "as is" and "as available" without any warranty of any kind. Beta services may be terminated at any time. OpenPool disclaims all obligation and liability under the agreement for any harm or damage arising out of or in connection with a Beta Service, including any obligation or liability with respect to subscriber data. any configurations or subscriber data entered into Beta Services, and any customizations made to Beta Services by or for You, may be permanently lost if the Beta Services are suspended, terminated, or discontinued.
7. Fees and Expenses
7.1. Fees & Pricing
Fee terms and pricing for use of the OpenPool APIs are set forth on our website or in a separate document that OpenPool agrees to with its customers (“Customer Agreement”). You agree to pay OpenPool the fees owed in accordance with the payment terms as set forth on the website or in the Customer Agreement. Fees cannot be canceled and cannot be decreased during the specified term.
OpenPool reserves the right, in its sole discretion, to propose promotional offers or price reductions.
If OpenPool agrees to provide and You agree to use the OpenPool APIs through a separate API service and fee arrangement, You shall pay OpenPool the fees as set forth in such document in accordance with the payment terms and conditions of such arrangement.
7.2. Terms of Payment
Payment for OpenPool API services are generally in the form of a recurring Subscription. Acceptable payment methods are detailed on our website or in the Customer Agreement and are carried out by the payment service provider chosen by OpenPool. The price of the Subscription is due, and the payment is carried out, on the day of the beginning of the first Subscription, then on the date of each Subscription renewal.
You guarantee to OpenPool that You have all the necessary authorizations to use the chosen payment method. You undertake all necessary measures so as to ensure safe carrying out of payments.
7.3. Subscription Upgrades or downgrades
You may upgrade or downgrade your Subscription at any time, through Your account created on our website or through a written request to OpenPool.
The upgrade applies at the moment of the upgrade for the duration of the new subscription.
In the case of a Subscription downgrade, the downgrade applies at the end of the subscription period. In the case of a Subscription downgrade, you may lose some of the functionalities of the OpenPool API services.
7.4 Revisions to Fees & Pricing
The prices provided on our website may be revised by OpenPool at any time, in its sole discretion.
You will be informed of this revision by OpenPool by any written means (including email), at least:
a). 1 (one) week before the entry into force of the new prices, if the Subscription Period has been subscribed for a duration of 1 (one) month.
b). 2 (two) months before the entry into force of the new prices, if the Subscription Period has been subscribed for a duration of 12 (twelve) months.
When effective, the new prices apply upon the renewal of the Subscription.
If You do not accept the new prices, You may cancel your Subscription on our website or via written notice to OpenPool. If You continue to use the OpenPool API services after entry into force of the new prices, You shall be deemed to have accepted them.
7.5. Invoicing
OpenPool shall issue invoices for the OpenPool API services for each Subscription Period.
These invoices will be sent to You through any pertinent channel.
7.6. Payment delays and Incidents
You are hereby informed and expressly agree that any payment delay of all or part of any payable amount at its due term shall automatically entail and from the day following the payment date indicated in the invoice immediate suspension of current OpenPool API services until complete payment by You of all amounts due.
7.7. No Refunds
OpenPool will not issue refunds for any reason. This policy applies to all OpenPool API Subscription services, including monthly, annual or other Subscription Periods specified in the Customer Agreement.
You may cancel your Subscription at any time or in accordance with terms specified in the Customer Agreement. However, no refunds will be issued. This policy is in place to protect OpenPool from abuse.
7.8. Taxes
All fees and other amounts payable by you under the API Terms are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by You hereunder, other than any taxes imposed on OpenPool’s income.
8. Collection and Use of Information
OpenPool may collect certain information through the OpenPool APIs about You or Your end-users. By accessing, using, and providing information to or through the OpenPool APIs or the OpenPool Data, you consent to all actions taken by OpenPool with respect to the information in compliance with the then-current version of OpenPool’s Privacy Policy and data protection requirements.
OpenPool complies with the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). However, You acknowledge and agree that You are solely responsible for ensuring that your use of the API Service is in compliance with GDPR and CCPA with respect to your own end-users. OpenPool shall use commercially reasonable efforts to assist You with any requests to access or delete personal data received from your end-users. You must contact OpenPool at [email protected] and provide sufficient identifying information such that OpenPool is able to verify the end-user's identity and process the request in accordance with applicable law.
9. OpenPool Branding
You shall ensure that the OpenPool Branding is used wherever any OpenPool Data is, if permitted in accordance with the API Terms, displayed, distributed, or made available to any third-party, in each case as set out in and in compliance with the Brand Guidelines. OpenPool hereby grants You permission to use the OpenPool Branding for this purpose only.
You shall clearly distinguish the Derived Data as being separate and distinct from the OpenPool Data whenever any Derived Data is displayed, distributed, or made available to any third-party, in each case as set out in and in compliance with the Brand Guidelines.
10. Publicity
You consent to OpenPool's use of your name and logo and general description of your relationship with OpenPool in press releases and other marketing materials and appearances. You further permits OpenPool to use it as a reference account for marketing purposes and agree, from time to time, to support OpenPool by participating in reference phone call(s) and other marketing events including with press, analysts, and OpenPool's existing or potential investors or customers upon reasonable request by OpenPool.
11. Intellectual Property Ownership
You acknowledge that, as between OpenPool and You, (a) OpenPool owns all rights, titles, and interests, including all intellectual property rights, in and to the OpenPool APIs, Data Services, OpenPool Data and the OpenPool Branding and (b) You own all rights, titles, and interests, including all intellectual property rights, in and to the Applications and Derived Data, excluding the aforementioned rights in this Section.
12. Your Representations
You represent and warrant to OpenPool that:
a) You have the full capacity and authority to enter into and be bound by the API Terms;
b) You operate in full compliance with all applicable laws in each jurisdiction in which You operate;
c) You have the right to use, reproduce, transmit, copy, publicly display, publicly perform, and distribute your Applications; and,
d) (i) You are not located in a country that is subject to the United States government embargo, or that has been designated by the United States government as a "terrorist supporting" country, and (ii) You are not listed on any United States government list of prohibited or restricted parties.
13. Term and Termination
13.1. Term
The API Terms shall commence on the date upon which You agree to them, by accessing or using the OpenPool APIs, and will continue until terminated as set forth herein.
13.2. Termination
a) Your Right to Terminate: Unless OpenPool and You have entered into a separate OpenPool API service and fee arrangement or other Customer Agreement with other defined termination terms, You may terminate the API Terms by discontinuing your use of the OpenPool APIs anytime.
b) OpenPool’s Right to Terminate: Unless OpenPool and You have entered into a separate OpenPool API service and fee arrangement or other Customer Agreement with other defined termination terms, OpenPool may change, suspend or discontinue the OpenPool APIs and suspend or terminate your use of the OpenPool APIs, Data Services, and/or OpenPool Branding at any time and for any reason, without notice. Without limiting the foregoing, OpenPool may limit your Applications’ access to the OpenPool APIs if it, in our sole discretion, may negatively affect any of our services or our ability to provide our services, including the Data Services.
13.3. Effect of Termination
a) All rights and licenses granted to You under the API Terms will terminate immediately.
b) You will promptly destroy all documentation and any other OpenPool information in your possession or control that was received under the API Terms.
c) Unless we agree otherwise in writing, You must permanently delete all data and other information that You stored pursuant to your use of the OpenPool APIs. OpenPool may request that You certify in writing your compliance with this Section.
14. Disclaimer of Warranties
EXCEPT AS EXPRESSLY WARRANTIED IN THE API TERMS, THE OPENPOOL APIS AND OPENPOOL BRANDING ARE PROVIDED “AS IS” AND OPENPOOL SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. OPENPOOL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. OPENPOOL MAKES NO WARRANTY OF ANY KIND THAT THE OPENPOOL APIS OR OPENPOOL BRANDING, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF YOUR OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
15. Indemnification
You agree to indemnify, defend, and hold harmless OpenPool and its officers, directors, employees, agents, affiliates, successors, and assignees from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interests, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to (a) Your use or misuse of the OpenPool APIs or OpenPool Branding, (b) Your breach of the API Terms, and (c) the Applications, including any end-user's use thereof. In the event OpenPool seeks indemnification or defense from You under this provision, OpenPool will promptly notify You in writing of the claim(s) brought against OpenPool for which OpenPool seeks indemnification or defense. OpenPool reserves the right, at OpenPool’s option and in OpenPool’s sole discretion, to assume full control of the defense of claims with legal counsel of OpenPool’s choice. You may not enter into any third-party agreement that would, in any manner whatsoever, constitute an admission of fault by OpenPool or bind OpenPool in any manner, without OpenPool’s prior written consent.
16. Limitation of Liability
IN NO EVENT SHALL OPENPOOL OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THE API TERMS TO YOU OR ANY THIRD-PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THE API TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT OPENPOOL WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN NO EVENT SHALL OPENPOOL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE API TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE FEES PAID TO OPENPOOL BY YOU IN THE PRECEDING TWELVE (12) MONTH PERIOD.
17. Governing Law and Dispute Resolution
17.1. Governing Law
The API Terms and any claim, cause of action or dispute (“Claim”) arising out of or related to the API Terms shall be governed by and construed in accordance with the laws of Delaware, United States, without giving effect to the conflicts of laws principles thereof.
17.2. Dispute Resolution
OpenPool and You agree that all Claims shall be first settled by amicable agreement. If a Claim is not settled amicably, it shall be submitted to the exclusive jurisdiction of the State of Delaware, United States. Notwithstanding the above, You agree that OpenPool shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
18. Miscellaneous
18.1. Assignment
You may not assign your rights and obligations under the API Terms without the prior written consent of OpenPool.
18.2. Severability
Every term and provision of the API Terms is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such term or provision will be enforced to the maximum extent permitted by law and, in any event, such illegality or invalidity shall not affect the validity of the remainder of the API Terms.
18.3. Equitable Relief
In no event shall You seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the OpenPool services or OpenPool APIs, or other material used or displayed through the OpenPool services or developer sites.
18.4. Translation Interpretation
These Terms and Conditions may have been translated if We have made them available to You on our Service. You agree that the original English text shall prevail in the case of a dispute.
18.5. Changes to These Terms and Conditions
OpenPool reserves the right, in its sole discretion, to modify or replace these API Terms at any time. If a revision is material, we will make reasonable efforts to provide at least 30 days' notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
By continuing to access or use our API Service after those revisions become effective, You agree to be bound by the revised terms. If You do not agree to the new terms, in whole or in part, please contact us or stop using the API Service.
18.6. Contact Us
If you have any questions about these API Terms, You can contact us:
- By email: [email protected]
19. Entire Agreement
The API Terms supersede all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter except, if applicable, a separate, formal, written Customer Agreement. In the event of any conflict or inconsistency among the following, the order of precedence shall be: (i) the applicable separate, formal, written Customer Agreement between You and OpenPool, (ii) the API Terms. No failure or delay by either party in exercising any right under the API Terms will constitute a waiver of that right. If any provision of the API Terms is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of the API Terms will remain in effect.