License Agreement

WEX Software Development Kit (SDK) License Agreement v.4.1.26

1. SDK LICENSE AGREEMENT

This Software Development Kit (SDK) License Agreement (Agreement) is between you (both the individual downloading the SDK and any legal entity on behalf of which such individual is acting) (You or Your) and WEX Inc. (WEX).

IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE “I ACCEPT” BUTTON OR AN EQUIVALENT INDICATOR OR BY DOWNLOADING, INSTALLING OR USING THE SDK OR THE DOCUMENTATION, YOU AGREE TO BE BOUND BY THIS AGREEMENT, AND IF ACTING ON BEHALF OF A LEGAL ENTITY ALSO REPRESENT AND WARRANT THAT YOU AS AN INDIVIDUAL HAVE THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE TO BE BOUND BY THIS AGREEMENT YOU WILL NOT BE PERMITTED TO (AND YOU WILL HAVE NO RIGHT TO) DOWNLOAD, INSTALL OR USE THE SDK OR THE DOCUMENTATION.

1. DEFINITIONS 1.1 “Application(s)” means software programs that You develop to operate with the Gateway using components of the SDK. 1.2 “Documentation” means the materials made available to You in connection with the SDK by or on behalf of WEX pursuant to this Agreement. 1.3 “Gateway” means any electronic platform maintained and operated by WEX and any of its affiliates. 1.4 “SDK” means the software development kit, including all software made available to You by or on behalf of WEX pursuant to this Agreement, including but not limited to sample source code, code snippets, software tools, code libraries, sample applications, Documentation and any upgrades, modified versions, updates, and/or additions thereto, if any, made available to You by or on behalf of WEX pursuant to this Agreement.
2. GRANT OF LICENSE; RESTRICTIONS 2.1 Limited License. Subject to and conditioned upon Your compliance with the terms of this Agreement, WEX hereby grants to You a limited, revocable, non-exclusive, non-transferable, royalty-free license during the term of this Agreement to:(a) within the United States, use the SDK solely for the purpose of developing, testing and manufacturing Applications;(b) distribute, sell or otherwise provide Your Applications that include components of the SDK to Your end users; and© use the Documentation in connection with the foregoing activities.The license to distribute Applications that include components of the SDK as set forth in subsection (b) above includes the right to grant sublicenses to Your end users to use such components of the SDK as incorporated into such Applications, subject to the limitations and restrictions set forth in this Agreement. 2.2 Restrictions. You shall not (and shall have no right to): (a) make or distribute copies of the SDK or the Documentation, in whole or in part, except as expressly permitted pursuant to Section 2.1; (b) reverse engineer, decompile, or disassemble the SDK; © alter or remove any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in the SDK or Documentation; (d) sublicense (or purport to sublicense) the SDK or the Documentation, in whole or in part, to any third party except as expressly permitted pursuant to Section 2.1; (e) engage in any activity with the SDK, including the development or distribution of an Application, that is illegal, or interferes with, disrupts, damages, circumvents security or access controls, or accesses in an unauthorized manner the Gateway, SDK, or platform, servers, or systems of WEX, any of its affiliates, or any third party; (f) make any statements that Your Application is “certified” or otherwise endorsed, or that its performance is guaranteed, by WEX or any of its affiliates; or (g) otherwise use or exploit the SDK or the Documentation for any purpose other than to develop and distribute Applications as expressly permitted by this Agreement. 2.3 Ownership. You shall retain ownership of Your Applications developed in accordance with this Agreement, subject to WEX’s ownership of the SDK and Documentation (including WEX’s ownership of any portion of the SDK or Documentation incorporated in Your Applications). You acknowledge and agree that all right, title and interest in and to the SDK and Documentation shall, at all times, be and remain the exclusive property of WEX and that You do not have or acquire any rights, express or implied, in the SDK or Documentation except those rights expressly granted under this Agreement. 2.4 No Support, Upgrades. WEX has no obligation to, but may in its sole discretion, provide support, maintenance, upgrades, modifications or new releases of the SDK. If WEX makes any upgrades, modifications or new releases available, prior version(s)of the SDK may cease to function and You may need to adopt the current version for continued use of the SDK. 2.5 License to WEX. In the event You choose to submit any suggestions, feedback or other information or materials related to the SDK or Documentation or Your use thereof (collectively, “Feedback”) to WEX, You hereby grant to WEX a worldwide, non-exclusive, royalty-free, transferable, sublicensable, perpetual and irrevocable license to use and otherwise exploit such Feedback in connection with the SDK, Documentation, and other products and services. 2.6 Use. (a) You represent, warrant and agree to use the SDK and write Applications only for purposes permitted by (i) this Agreement; (ii) applicable law and regulation, including, without limitation, the Payment Card Industry Data Security Standard (PCI DSS), and the Health Insurance Portability and Accountability Act of 1996 and Health Information Technology for Economic and Clinical Health Act including their implementing regulations, as amended (collectively “HIPAA”); and (iii) industry standards or guidelines in the relevant jurisdictions. (b) You represent, warrant and agree that if You use the SDK to develop Applications for end users, that You will protect the privacy and legal rights of those users. If the Application receives or stores personal or sensitive information provided by end users, it must do so securely and in compliance with all applicable laws and regulations, including without limitation privacy and banking laws, card association regulations, and HIPAA. If You use the SDK to access or share any personal data, You acknowledge and agree that You shall access or share personal data only with consent as required by applicable law and only when, and for the limited purposes for which, the individual has given You permission to do so. © You represent, warrant and agree that You are solely responsible for (and that neither WEX nor its affiliates have any responsibility to You or to any third party for): (i) any data, content, or resources that You obtain, transmit or display via the Application; and (ii) any breach of Your obligations under this Agreement, any applicable third party license, or any applicable law or regulation, and for the consequences of any such breach.
3. WARRANTY DISCLAIMER; LIMITATION OF LIABILITY 3.1 Disclaimer. THE SDK AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH NO WARRANTIES. YOU AGREE THAT YOUR USE OF THE SDK AND THE DOCUMENTATION IS AT YOUR SOLE RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH USE. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WEX AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SDK AND THE DOCUMENTATION, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. NEITHER WEX NOR ITS AFFILIATES WARRANT THAT THE FUNCTIONS OR INFORMATION CONTAINED IN THE SDK OR THE DOCUMENTATION WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SDK OR DOCUMENTATION WILL OPERATE ERROR FREE, OR THAT THE SDK OR DOCUMENTATION IS COMPATIBLE WITH ANY PARTICULAR OPERATING SYSTEM. 3.2 Limitation of Liability. IN NO EVENT SHALL WEX AND ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA, USE OR COST OF SUBSTITUTE PROCUREMENT, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF WEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE. IN NO EVENT SHALL THE ENTIRE LIABILITY OF WEX AND AFFILIATES ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 3.2 AND IN THE OTHER PROVISIONS OF THIS AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH WEX WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
4. INDEMNIFICATION You shall indemnify, hold harmless and, at WEX’s request, defend WEX and its affiliates and their officers, directors, employees, and agents from and against any claim, suit or proceeding, and any associated liabilities, costs, damages and expenses, including reasonable attorneys’ fees, that arise out of or relate to: (i) Your Applications or the use or distribution thereof and Your use or distribution of the Gateway, SDK, or the Documentation (or any portion thereof), including, but not limited to, any allegation that any such Application or any such use or distribution infringes, misappropriates or otherwise violates any intellectual property (including, without limitation, copyright, patent, and trademark), privacy, publicity or other rights of any third party, or has caused the death or injury of any person or damage to any property; (ii) Your alleged or actual breach of this Agreement; (iii) the alleged or actual breach of this Agreement by any party to whom You have provided Your Applications, the Gateway, SDK, or the Documentation or (iv) Your alleged or actual violation of or non-compliance with any applicable laws, legislation, policies, rules, regulations or governmental requirements.
5. TERM AND TERMINATION This Agreement and the licenses granted to You herein are effective until terminated. WEX may terminate this Agreement, or discontinue or suspend the SDK or any portion or feature thereof and the licenses granted to You, at any time, with or without notice, and without liability or other obligation to You. Upon termination of this Agreement, You shall cease all use of the SDK and the Documentation, return to WEX or destroy all copies of the SDK and Documentation and related materials in Your possession, and so certify to WEX upon request. Except for the license to You granted herein, the terms of this Agreement shall survive termination.
6. CONFIDENTIAL INFORMATION a. You hereby agree (i) to hold WEX’s Confidential Information in strict confidence and to take reasonable precautions to protect such Confidential Information (including, without limitation, and without limiting the foregoing, all precautions You employ with respect to Your own confidential materials), (ii) not to divulge any such Confidential Information to any third person; (iii) not to make any use whatsoever at any time of such Confidential Information except as strictly licensed hereunder, (iv) not to remove or export from the United States or re-export any such Confidential Information or any direct product thereof. b. “Confidential Information” shall mean any data or information, oral or written, treated as confidential that relates to WEX’s past, present, or future research, development or business activities, including without limitation any current or unannounced products and services, any information relating to services, developments, inventions, trade secrets, processes, plans, financial information, customer or personal data, revenue, transaction volume, forecasts, projections, application programming interfaces, SDK, and Documentation.
7. GENERAL TERMS 7.1 Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the internal laws of the State of Delaware without giving effect to any choice of law rule. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event of any controversy, claim or dispute between the parties arising out of or relating to this Agreement, such controversy, claim or dispute shall be resolved in binding arbitration. You and WEX agree that, by entering into this Agreement all parties are waiving their respective rights to a trial by jury or to participate in a class or representative action. THE PARTIES AGREE THAT EACH MAY BRING COMMERCIAL CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. You may bring a commercial claim only on Your own behalf and cannot seek relief that would affect other parties. If there is a final judicial determination that any particular commercial claim (or a request for particular relief) cannot be arbitrated in accordance with this paragraph’s limitations, then only that commercial claim (or only that request for relief) may be brought in court. All other commercial claims (or requests for relief) remain subject to this paragraph. 7.2 No use of Marks. Nothing in the Agreement gives You a right to use any of WEX’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features. 7.3 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision shall be modified to the minimum extent necessary to render it enforceable and most clearly reflect the intent of the original provision, and the remainder of this Agreement shall continue in full force and effect. Any inaction or waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. 7.4 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of WEX, which may be withheld in WEX’s sole discretion. Any purported assignment, transfer or delegation by You shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. 7.5 Government Rights. If You (or any person or entity to whom You provide the SDK or Documentation) are an agency or instrumentality of the United States Government, the SDK and Documentation are “commercial computer software” and “commercial computer software documentation,” and pursuant to FAR 12.212 or DFARS 227.7202, and their successors, as applicable, use, reproduction and disclosure of the SDK and Documentation are governed by the terms of this Agreement. 7.6 Privacy. In order to continually innovate and improve the SDK, Licensee understands and agrees that WEX may collect anonymized data, certain usage statistics including but not limited to a unique identifier, associated IP address, version number of software, and information on which tools and/or services in the SDK are being used and how they are being used. 7.7 Headings. The headings to the Sections and Subsections of this Agreement are for convenience only and shall not affect the meaning of the language included therein. 7.8 Entire Agreement; Amendments. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. WEX may make changes to this Agreement, SDK or Documentation in its sole discretion. When these changes are made, WEX will make a new version of the Agreement, SDK, or Documentation available on the website where the SDK is available. This Agreement may not be modified or amended by You except in a writing signed by a duly authorized representative of each party. You acknowledge and agree that WEX has not made any representations, warranties or agreements of any kind, except as expressly set forth herein. 7.9 Relationship of the Parties. You and WEX are independent contractors with regard to each other. This Agreement does not create any third-party beneficiary rights or any agency, partnership, employment, or joint venture.

BY CLICKING “I ACCEPT,” “I AGREE” OR AN EQUIVALENT INDICATOR OR BY DOWNLOADING, INSTALLING OR USING THE SDK OR THE DOCUMENTATION, YOU ACKNOWLEDGE AND AGREE THAT (1) YOU (AS DEFINED ABOVE) HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY, (2) YOU AGREE TO BE BOUND BY THIS AGREEMENT, AND (3) YOU HAVE THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT.