Xin Performance Developer Terms
Last Modified: May 20, 2020
PLEASE READ THESE DEVELOPER TERMS CAREFULLY.
Thanks for choosing to use Xin Performance’s APIs, Developer Tools (including tools for development on our Content Management System (“CMS”)), software development kits (SDKs) and associated software (collectively, the “Developer Tools”). We are excited to have you join the Xin Performance Developer ecosystem. And when you develop on the Xin Performance Platform, you agree to be bound by these terms.
By accessing or using the Developer Tools, you are entering into a legally binding agreement with Xin Performance that is governed by the terms below as they may be revised from time to time and by any applicable policies and guidelines, including our Xin Performance Developer Policy (“Developer Policy”), and our Acceptable Use Policy (“AUP”) (collectively, the “Developer Terms”). If you are an individual representing an entity, you acknowledge that you have the appropriate authority to accept this agreement on behalf of such entity, you may not use the licensed material, and may not accept these developer terms if you are not of legal age to form a binding contract, or you are barred from using or receiving the licensed material under applicable law
We periodically update these Developer Terms. We will post the updated Developer Terms here and update the “Last Modified” date above to reflect the date of the most recent version. We encourage you to review these Developer Terms periodically.
“Application” means your software application, website, website asset, product, and/or service.
“Content” means any data or content accessed via the Developer Tools.
“Customer” means the authorized actual user of the Xin Performance Products.
“Developer Account” means a Xin Performance Developer Account.
“Developer Credentials” means any passwords, keys, tokens, or other access credentials that allow you to access the Developer Tools or Content.
“Xin Performance Customer Data” means any data that a customer submits or collects via the Xin Performance Products.
“Xin Performance Platform” means all Xin Performance products and services.
“Integration” means a software module, template, connected service, or anything you create using the Developer Tools.
“Test Account” means Xin Performance Accounts you can create through the use of your Developer Account.
“We”, “us”, “our”, or “Xin Performance” means Xin Performance Limited.
“You” and “your” means the party, other than Xin Performance, agreeing to these Terms and using the Developer Tools.
- Use of a Developer Account
- Test Accounts.Test Accounts are to be used solely for testing your application or integration. You may not use a Test Account to circumvent the use of a Developer Account or paid Xin Performance Accounts. Additionally, you may not use a Test Account as a staging environment or as verified test accounts.
- Registering for use of the Developer Tools.
- Accepting the Terms. You may not use any Developer Tools and may not accept these Developer Terms if (a) you are not of legal age to form a binding contract with us, or (b) you are a person barred from using or receiving the Developer Tools under the applicable laws of the Hong Kong or other countries including the country in which you are resident or from which you use the Developer Tools.
- Use on Entity’s Behalf. If you are using the Developer Tools on behalf of a company or other entity, you represent and warrant that you have full legal authority to bind it to these Terms. You acknowledge that all references to “you” in the Terms refer to that entity.
- Use by End Users. You will require your end users, including Customers, to comply with these Terms and all applicable laws and regulations.
- Use of the Developer Tools.
- Access to the Developer Tools. Subject to these Terms, we grant you a non-exclusive, non-transferable, revocable right, without the right of sublicense, to access, and use the Developer Tools. We do not acquire ownership in your Application or Integration, and by using the Developer Tools, you do not acquire ownership of any rights in the Developer Tools, Xin Performance Customer Data, or the Content.
- Permitted Uses. You will comply with all applicable laws (including laws regarding the import or export of data or software, privacy laws, and local laws). You may only access those Developer Tools for which we provide documentation individually. You will comply, if applicable, with our API Usage Guidelines, our Developer Policy, and our AUP.
- Limits and Restrictions. We set and enforce limits on your use of the Developer Tools at our sole discretion, and may change the limits at any time by revising the Developer Tools Usage Guidelines on our Pricing. You will not attempt to circumvent the limitations documented in the Developer Tools Usage Guidelines. You will not engage in any deceptive, misleading, illegal or unethical activities, or activities that otherwise may be detrimental to the Developer Tools, us, Customers, or the public. You will not create an Application and/or Integration that (a) recreates a core functionality of, or replaces, any Xin Performance product or service in such a way as to cause us or our Customers, Partners, or Affiliates reputational or financial damage, however, both you and Xin Performance are permitted to develop and publish Applications and/or Integrations or products and service that are similar to or otherwise compete with such party’s Applications and/or Integrations or products and services (subject to these Terms), (b) caches or stores any Content other than for reasonable periods in order to provide your Application and/or Integration to Xin Performance customers, or (c) aggregates retrieved Content with third-party content in such a way that a Customer cannot attribute the Content to us. You will not collect, store, or share Xin Performance account passwords. You will not copy, reformat, reverse-engineer, or otherwise modify the Developer Tools or any Xin Performance product or service.
- Security. You will always use and have in effect, appropriate administrative, physical, and technical safeguards that (a) meet or exceed industry standards with respect to the sensitivity of the data you are accessing or providing; (b) are compliant with applicable laws and regulations (including data security and privacy laws and regulations), and (c) are designed to prevent unauthorized access, use, processing, storage, destruction, loss, alteration, disclosure of personal data. You will keep all Developer Credentials that we issue to you confidential and not make them publicly available or disclose them to third-parties . You will work with us to immediately correct any security deficiency, and will immediately disconnect any intrusions or intruder. If your Application and/or Integration experiences a security deficiency or intrusion, you will coordinate with us on any public statements (e.g. press, blog posts, social media, etc.) before publication.
- Deletion. You must promptly delete all Content and Xin Performance Customer Data collected with the consent of a user of your Application and/or Integration, including all tokens, in accordance with applicable law, upon request by that user, or if that user closes their account with you. You must immediately delete all Content if we terminate your use of the Developer Tools, except when doing so would cause you to violate any law or obligation imposed by a governmental authority.
- Monitoring. You agree that we may monitor your use of the Developer Tools to ensure quality, improve our products and services, and verify your compliance with the Terms. You agree to assist us with this monitoring by providing us with information about your Application and/or Integration, data security and protection practices, and storage of Content, which may also include access to your Application and/or Integration and other materials related to your use of the Developer Tools. If you do not demonstrate full compliance with these Terms, we may restrict or terminate your access to the Developer Tools or Developer Account with or without notice to you.
- Xin Performance Rights.
We reserve the right to do any of the following with or without notice:
- Charge fees for access to any of the Developer Tools.
- Offer or cease to offer support for the Developer Tools.
- Modify the Developer Tools and require you to use those subsequent versions.
- Require you to use the Developer Tools in a different manner.
- Deprecate any of the Developer Tools at our sole discretion.
- Independently develop products or services that may compete with your Applications and/or Integrations or other products and services.
- If we determine that your use of the Developer Tools or Developer Credentials is against the interests of us or our Customers, we reserve the right to deactivate any Developer Credentials you have obtained from them, block your IP address, or otherwise prevent your use of the Developer Tools.
- Audit Rights. We reserve the right to, and you permit us, and/or third-party professionals working at our direction (including auditors, attorneys, consultants, and/or computer forensics analysts) (collectively, “Auditors”) to review or audit your books, records, agreements, access logs, third-party audit and examination reports, systems, networks, technologies, facilities (including physical and remote access to data centers and cloud facilities), controls, processes, policies and procedures, which relate to the Xin Performance Customer data or Xin Performance products to ensure compliance with our Terms of Service and these Developer terms. You will obtain permission from your Service Providers for us or our Auditors to perform the above review relating to the Xin Performance Customer data. You will provide us and our Auditors such information and assistance, at your sole expense, as reasonably requested in order to perform the compliance review. Any such compliance review will be conducted during normal business hours and with reasonable prior written notice, unless in our sole judgment the circumstances do not allow for prior notice, such as in the event of a data breach. If any review reveals any noncompliance: (i) you will reimburse us for all reasonable costs and expenses of such review and all re-reviews (if the noncompliance was material), (ii) you will immediately remedy such noncompliance, (iii) upon completion of such remediation, your authorized officer will certify in writing to us that you have addressed the non-compliance, and that you are now in compliance.
- Asset Changes. From time to time, we may change the Xin Performance Developer Tools or related Xin Performance Products. Future versions of the Xin Performance Developer Tools may not be compatible with your Application and/or Integration. When we make such changes, we are unable to provide notice of the changes to developers individually. We will have no liability resulting from any changes to the Developer Tools.
- Branding, Publicity, and Feedback.
- Branding. You grant to us all necessary rights to produce and distribute incidental depictions, including screenshots, video, or other content from your Application and/or Integration, as well as to use your company or product names and logos, in order to promote, market, and demonstrate the Developer Tools and associated Xin Performance products. During the term of this Agreement, you may use our trademarks as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademarks that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with your Application and/or Integration; and (iii) immediately comply if we request that you stop using our marks. You must not: (i) use our trademarks in a misleading or disparaging way; (ii) use our trademarks in a way that implies we endorse, sponsor, or approve of your services or products (unless authorized by Xin Performance in writing or in another agreement); or (iii) use our trademarks in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
- Feedback. We welcome and encourage all users to provide feedback or suggestions for improving our Developer Resources and Tools. You agree that all feedback and suggestions will be non-confidential and you grant us a worldwide, royalty-free, non-exclusive, perpetual, and irrevocable license to use, copy, modify, sublicense, and otherwise exploit any feedback (including any ideas, concepts, methods, know-how or techniques embodied in feedback) for any purpose, without any restriction or obligation to you based on intellectual property rights or otherwise.
- Term; Termination
These Terms will apply for as long as you use the Developer Tools, have a Developer Account, have an Integration with the Xin Performance platform, or until terminated as described by these terms. You may terminate these Terms at any time by discontinuing use of the Developer Tools. We may suspend or terminate your use of all or any of the Develop Tools for any reason, and at any time, without liability or other obligation to you.
Upon any termination of the Terms or discontinuation of your access to the Developer Tools and Developer Account, you will immediately stop using the Developer Tools and Developer Account, cease all use of our trademarks, and delete any cached or stored Content. We may independently communicate with any customer whose account(s) are associated with your Application and/or Integration and Developer Credentials to provide notice of the termination or suspension of your right to use to the Developer Tools and/or the Developer Account.
- Disclaimers; Limitations of Liability.
- Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE DEVELOPER TOOLS OR THE CONTENT FOR ANY PURPOSE. THE DEVELOPER TOOLS MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE DEVELOPER TOOLS AND CONTENT ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE DEVELOPER TOOLS AND CONTENT INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
- Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE AMOUNT, IF ANY, YOU PAID US TO USE THE APPLICABLE DEVELOPER TOOLS DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY
- No Resale. These Terms do not grant you the right to distribute or resell Xin Performance Products or Services, nor do they create any binding commitment on behalf of us. In addition, you may not directly or indirectly charge end users for use of, or access to, the functionality of the Xin Performance Products or Xin Performance Developer Tools.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of: (a) your use of the Developer Tools; (b) your violation of these Terms;(c) your violation of applicable privacy laws or regulations; or (d) the violation of any copyright, trademark, service mark, trade secret, patent, or any other intellectual property right related to your Application and/or Integration or brand features. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
- Amendment; No Waiver. We may update and change any part or all of these Terms, including fees associated with the use of the Developer Tools. If we update or change these Terms, the updated Terms will be posted at here. The updated Terms will become effective and binding on the next business day after they are posted. When we change these Terms, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review these Terms periodically. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Applicable Law. This Agreement shall be governed by the laws of the Hong Kong SAR, China without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue, and jurisdiction of such action shall be in the high court in Hong Kong SAR, China.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other events outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
- Compliance with Laws. We will comply with all applicable Hong Kong laws, and international laws in our provision of the Developer Tools. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all applicable laws in your use of the Developer Tools and Content, including any applicable export laws.
- Severability. If any part of these Terms is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms will continue in effect.
- Notices. Notice shall be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and shall be deemed delivered as of the date of actual receipt. To Xin Performance: Xin Performance 2112 Kodak House 2, 39 Healthy Street East, Quarry Bay, Hong Kong. Attention: General Counsel. To you: your address as provided in our account information for you. Xin Performance may give electronic notices specific to you by email to your e-mail addresses on record in our account information for you.
- Entire Agreement. These Terms are the entire agreement between us and you regarding the use of the Developer Tools and supersede all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Developer Tools or dependent on any oral or written public comments made by us regarding future functionality or features of the Developer Tools.
- Assignment. You may not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, the sale of all or substantially all of your assets, change of control or by operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of a merger, reorganization, sale of all or substantially all of our assets, change of control or by operation of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.