Third Party Application Developer Terms of Service

Last Updated: April 12, 2011

Thank you for choosing to develop your application on the Ning (“Ning” “we” or “us“) platform! Ning provides a software platform (the “Ning Platform“) that enables Users to create, join or browse social networks built on the Ning Platform. Ning offers specific Ning approved APIs (including proprietary APIs and OpenSocial APIs, among others) to be used for development on the Ning Platform (the “Ning APIs“). The Ning APIs allow you to create certain compatibility between an application, service or product created by you (“Your Application“) and the Ning Platform.

BY REGISTERING WITH NING, DEVELOPING APPLICATIONS, PRODUCTS OR SERVICES FOR USE ON NING, OR DOWNLOADING, IMPLEMENTING, OR OTHERWISE USING THE NING APIS OR NING APPLICATION SOURCE CODE (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE NING THIRD PARTY APPLICATION DEVELOPER TERMS OF SERVICE, INCLUDING ANY FUTURE MODIFICATIONS (THE “APPLICATION DEVELOPER TERMS“). IF, AT ANY TIME, YOU DO NOT AGREE TO THESE APPLICATION DEVELOPER TERMS, THEN YOU SHOULD STOP USING THE NING APIS OR NING APPLICATION SOURCE CODE. FOR CLARITY, THESE APPLICATION DEVELOPER TERMS DO NOT AUGMENT YOUR RIGHTS TO NETWORK CODE SET FORTH IN THE NING TERMS OF SERVICE.

When using the Ning APIs, Ning Application Source Code or otherwise developing any applications, products or services for use on Ning, you will also be subject to the Ning Terms of Service (including all restrictions on User conduct, disclaimers, and limitations of liability contained therein) and Guidelines. These Application Developer Terms are incorporated into and are subject to the Ning Terms of Service. Any capitalized terms not defined herein have the meaning set forth in the Ning Terms of Service. Ning, from time to time, may post additional guidelines regarding your use of the Ning APIs (“Application Developer Guidelines“) and you agree that Your Application shall not violate any such Application Developer Guidelines or the Ning Terms of Service. All Application Developer Guidelines are part of these Application Developer Terms and are hereby incorporated by reference. In the event of any conflict between the Terms of Service and these Application Developer Terms, these Application Developer Terms shall control.

1. Eligibility

You represent that you are of legal age to form legally binding contracts and are fully able and competent to enter into the terms, conditions, obligations, representations and warranties set forth in these Application Developer Terms. If you are using the Ning APIs or Ning Application Source Code as a representative of a company or legal entity, you (i) represent that you have the authority to enter into this Agreement on behalf of that company or entity, and (ii) the terms “you” and “your” in this Agreement refers to your company or legal entity.

2. Modifications

We may amend, modify, change, add or remove portions of these Application Developer Terms at any time without notice to you by posting a revised version on www.ning.com or elsewhere on the Ning Platform. The revised version will be effective at the time we post it. Please check these Application Developer Terms periodically for changes. Your continued use of the Ning APIs after posting of the changes constitutes your binding acceptance of such changes. We last modified these Application Developer Terms on the date stated above. However, if the revised version includes a material change, it will be effective on the earlier of (a) the date you accept it, and (b) 30 days after the material changes are initially posted to www.ning.com or elsewhere on the Ning Platform. The revised version will apply to you immediately if you are a Third Party Application Developer who registers or first uses the Ning APIs or Ning Application Source Code on or after the posting of the revised version.

3. Developing on Ning and Ning API Use

If you are developing applications, products or services for use by any Network Creator or Member on the Ning Platform you may only do so using the Ning APIs. The Ning APIs allow you to create certain compatibility between Your Application and the Ning Platform. “Your Application” includes data, images, text, content, code or other copyrightable materials or other information or materials of any kind (other than any Ning Technology or Ning Properties (as defined below)) that is included in, provided through or used in connection with Your Application or otherwise provided by you to Ning.

Subject to the terms and conditions of these Application Developer Terms and during the term of these Application Developer Terms, you are hereby granted a limited, nonexclusive, non-sublicensable, non-transferable, freely revocable license to access the Ning APIs solely for the purpose of creating compatibility between the Ning Platform and Your Application.

Ning may at any time change the specifications of or restrict, limit or deny access to the Ning APIs, including, limiting the number of calls Your Application may send to the Ning Platform, in Ning’s sole discretion and without liability or prior notice to you.

You acknowledge and agree that Ning may use any technological means to enforce these Application Developer Terms. Notwithstanding anything to the contrary, you hereby grant Ning the right to crawl, test or otherwise monitor Your Applications for the purpose of verifying your compliance with these Application Developer Terms, and that you will not seek to block or otherwise interfere with such crawling or monitoring.

Unless otherwise agreed to in a writing signed by Ning, you agree (a) not to access (or attempt to access) any service on the Ning Platform by any means other than through the Ning APIs and (b) that you may only develop applications, products or services for use by any Network Creator or Member on the Ning Platform using the Ning API’s as permitted in these Application Developer Terms or by the Ning Terms of Service.

4. Approval of Your Application

You acknowledge that Ning reserves the right, but shall have no obligation, to pre-screen, refuse to accept, post, display or transmit Your Application through or on any Network or the Ning Platform in whole or in part at any time for any reason or no reason with or without notice and with no liability.

5. Your Privacy and Data Collection Related Obligations

To become a Third Party Application Developer, you must register with Ning. For information regarding how Ning collects, uses and discloses your personal information, please see the Ning Privacy Policy.

If Your Application collects any data (including personally identifiable and non-personally identifiable information) from Members, you must be clear that the information is being collected directly by you, and not by Ning, and you must post a link to your privacy policy at the point such information is collected. Additionally, you agree that you shall implement and observe standards of privacy and confidentiality for the collection, use and sharing of any data related to any Members that comply with all applicable law and regulations and are at least as stringent as the standards set forth in the Ning Privacy Policy.

You acknowledge that Ning may receive requests from Members or persons authorized to act on behalf of such Members to modify or delete personally identifiable information relating to such Members. Accordingly, you agree that you will, within 24 hours of any email request by Ning: (a) delete all data and other personally identifiable information in your possession or control relating to a particular Member as specified by Ning; and (b) confirm such deletion in email notice to Ning.

Additionally, at Ning’s request, you will promptly provide to Ning, information about a particular user of Your Application in order to: (i) satisfy any applicable law, regulation, legal process or governmental request,(ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security, or technical issues, (iv) respond to Member support requests, (v) protect the rights, property, or safety of Ning, its Users, and the general public, or (vi) investigate or defend ourselves against third-party claims or allegations.

The Ning APIs include certain restrictions on data access meant to protect User privacy and give Members the ability to control access to privacy settings for their data. You hereby agree to comply with, and in no way circumvent, all such data access restrictions set by Ning and any privacy settings that the Member has selected.

6. Your Copyright Related Obligations

You agree to take whatever actions are necessary or are requested by Ning to enable Ning to comply with Ning’s copyright policies and applicable laws (including the Digital Millennium Copyright Act (“DMCA“) and regulations with respect to Your Applications and Member Content. “Member Content” means images, music, videos, text or other Content uploaded or posted to the Ning Platform by its Members.

Further, you agree to:

promptly (and in any event in no more than 24 hours) address (including removing or disabling access to the allegedly infringing content for valid DMCA take down notices) any copyright owner’s written notice (including any notices forwarded to you by Ning) that specified content or other information in Your Application infringes that third-party’s rights (including copyrights);
adopt and implement a policy that provides for the termination, in appropriate circumstances, of repeat infringers;
notify Ning if you receive any complaint (including a copyright or other right holder) based on any content that is hosted by Ning; and
immediately remove from Your Application, any Member Content: (a) if such Member Content is removed from the Ning Platform (b) upon notice from Ning; (c) if you receive a valid DMCA take down notice or (d) upon the termination of your use of the Ning APIs.

Additionally, and without limiting your obligations under this Section, if your Application allows users to download, view, listen to or otherwise access or distribute third party content, you will:

Host a page containing either our sample copyright policy (with your name and contact information filled in), or another policy that imposes at least the same requirements on you (“Your Copyright Policy”).
Include a prominent link to Your Copyright Policy on each page of Your Application or other feature of Your Application (such as a profile box) through which users can access content uploaded by other users, with the link being entitled “Copyright Policy” or words to the same effect.
Register an agent to receive notices of claimed infringement with the U.S. Copyright Office. To register a Designated Agent, you must fill out the form located here: https://www.copyright.gov/onlinesp/tutorials/transcripts/designate-an-agent.pdf completely and accurately.
Conscientiously follow Your Copyright Policy. PLEASE READ THE SAMPLE POLICY CAREFULLY. IF YOU DO NOT BELIEVE THAT YOU CAN COMPLY WITH ANY OF THE PROVISIONS OF THAT SAMPLE POLICY, YOU MAY NOT ACCESS OR USE THE NING APIS IN CONNECTION WITH YOUR APPLICATION.
Include the following statement reasonably prominently on each page of Your Application (or other interface provided by Your Application) through which users can upload or otherwise make content available: “By making any content available through this application, you represent and warrant that you own or have licensed all rights necessary to properly do so.”

THIS IS NOT LEGAL ADVICE. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR COMPLYING WITH ALL APPLICABLE LAWS, INCLUDING COPYRIGHT AND PRIVACY LAWS, IN CONNECTION WITH YOUR APPLICATION, AND WE ENCOURAGE YOU TO OBTAIN INDEPENDENT LEGAL COUNSEL.

7. Your Support Obligations

You agree that Ning can contact you via the e-mail address you provided as part of your registration (or via any other contact information that is provided by you) regarding Your Application, including inquiries from Members. You acknowledge and agree that you are solely responsible for, and that Ning has no responsibility or liability of any kind for, providing support and other information regarding Your Application to Members. Additionally, you agree that you are solely responsible for, and that Ning has no responsibility or liability of any kind for, the development, operation and maintenance of Your Applications and for all Member Content or other materials that appear on or within Your Application.

For example, you will be solely responsible for:

the technical operation of Your Applications and all related equipment;
creating and displaying information and content on, through or within Your Applications;
the accuracy and appropriateness of Your Applications and the Member Content or other materials available on, through or within Your Applications; and
any claims relating to any of Your Applications or any Member Content by users or other third parties.

8. Advertising

Ning allows you to include advertising, commercial or promotional content (collectively, “Advertising“) on the areas of Your Application which you control. Any other page or portion of a page on the Ning Platform may not contain any Advertising. If you include Advertising, you agree and consent to Ning providing you with information, offers, programs, features and functionality relating to advertising, including deals with advertising partners and advertising networks.

You will not, and will not permit any person, directly or indirectly, to provide Advertising in connection with Your Application that does not comply with our Terms of Service and any Advertising Policies. Without limiting the generality of the foregoing, you will block the following types of Advertising (each, “Improper Advertising“) from delivery to Your Application: all Advertising (a) which conducts any action outside of Your Application within a page or otherwise fails to conform to the technical specifications set by Ning, including by use of expandable banners, floating Advertising, and/or interstitial advertising; (b) triggering a pop-up, pop-under or initiates a downloadable application; (c) for advertising gambling, pharmaceutical products, pornographic products or services, alcohol, guns, tobacco; (d) containing any viruses, adware, spyware, worms, malicious code or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise materially, adversely alter the user experience; and (e) containing any content or link that, to a reasonable person, may be seen as abusive, obscene, pornographic, defamatory, harassing, offensive, vulgar, threatening, or malicious. Providing or allowing a third party to provide Advertising that is not in conformance with the foregoing constitutes a material breach of this Agreement by you and will entitle Ning to all available remedies in law and equity, including special, punitive and exemplary damages and indemnification from you in connection with any third party claim, action or other proceeding arising out of or related to such event.

9. License to Ning Application Source Code

Application to Ning Application Source Code

Ning has created applications that use the Ning APIs and has provided the source code to such applications (the “Ning Application Source Code”) for your education regarding the Ning APIs, subject to the restrictions, limitations and disclaimers herein.

During and subject to the terms and conditions of this Agreement (including the Third Party License Requirements below), Ning makes the Ning Application Source Code available under the license requirements set forth in the Apache License, Version 2.0.

Third Party License Requirements

The Ning Application Source Code may be distributed with Third Party Software. You acknowledge that certain components of the Ning Application Source Code may be covered by licenses governing the use of Third Party Software. Please review the licenses contained in each file of the Ning Application Source Code for the license terms of applicable Third Party Software licenses. Copyrights to the Third Party Software are held by the copyright holders indicated in the copyright notices in the corresponding files. To the extent required by the licenses covering Third Party Software, the terms of such licenses will apply in lieu of the terms of this Agreement. To the extent the terms of the licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement with respect to such Third Party Software, such restrictions will not apply to such Third Party Software.

License Restrictions

Except as expressly permitted under this Agreement, you agree not to, nor will you allow any third party (whether or not for your benefit) to:

Run, rent, lease, loan, or sell access to the Ning Properties.

Copy, archive, store, reproduce, rearrange, modify, download, upload, create derivate works from, display, perform, publish, distribute, redistribute or disseminate any Ning Properties.

Access the Ning Application Source Code to build a product using similar ideas, features, functions, interface or graphics of the Ning Application Source Code to be used outside of the Ning Platform.

Circumvent, disable or otherwise interfere with security related features of the Ning Application Source Code or features that prevent or restrict use or copying of any Content or Third Party Content or enforce limitations on use of the Ning Application Source Code or the Content and Third Party Content therein.

10. Further Permitted and Prohibited Uses

Without limiting the Acceptable Use and Conduct Section of the Ning Terms of Service, you agree that you WILL:

comply with any other terms and conditions a Member has attached to Member’s Member Content;
in connection with your use of the Ning APIs, Ning Application Source Code and the Ning Platform, comply with all applicable local, state, national, and international laws and regulations, including copyright and other laws protecting proprietary rights (including the DMCA) and all applicable export and reexport control laws and regulations. For clarity, the foregoing does not limit your representations in Section 17, below;
ensure that you and Your Application will at all times comply with these Application Developer Terms as well as the Ning Terms of Service, Privacy Policy, Copyright Policy, Guidelines and all other terms governing your use of the Ning Platform, Ning APIs or Ning Properties;
obtain and maintain all licenses, permits and any other permissions necessary in connection with your use of the Ning APIs and Ning Application Source Code;
if Your Application involves payment or account information, comply with all rules and regulations of any applicable payment network or association; and
provide any information and/or other materials related to Your Applications reasonably requested by Ning from time to time to verify your compliance with these Application Developer Terms.

Without limiting the Acceptable Use and Conduct Section of the Ning Terms of Service, you agree that you WILL NOT:

infringe, violate or misappropriate any third party’s intellectual property rights or other proprietary rights either through your own conduct or through the conduct of your users (i) of which you are aware or reasonably should be aware; and (ii) do not take reasonable steps to prevent;
except as specified in Ning API documentation, collect, solicit or otherwise obtain access to usernames, passwords or other authentication credentials from any Member of the Ning Platform, or to proxy authentication credentials for any Member of the Ning Platform for any purpose, including automating logins to the Ning Platform (provided that if you do request such authentication information for the purpose of developing through the Ning API, you may not use such information for any purpose other than initial authentication of the Member, and in any event, you may not archive, store or otherwise retain such information);
use the Ning Platform, Ning APIs, Ning Application Source Code or any of Your Applications, and Your Applications will not be designed, in a manner, that is misleading, deceptive or fraudulent or otherwise promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent of misleading purposes;
impose or purport to impose any obligation on any person, or grant or purport to grant any right, power or authority to yourself or any other person, that would be inconsistent with these Application Developer Terms, and you agree that any such obligation, right, power or authority purportedly imposed or granted shall be null and void;
remove, obscure, or alter any notice of patent, copyright, trademark or other proprietary right appearing on the Member Content, Ning APIs, Ning Application Source Code or Ning Technology;
use the Ning APIs for the purposes of developing a product that will be owned by a third party who has not registered with Ning and agreed to be bound by these Application Developer Terms;
use the Ning APIs or Ning Application Source Code for the purpose of developing a product that would compete with Ning’s products or services, or that replicates or attempts to replace the essential user experience of the Ning Platform;
copy, distribute, reproduce, sell, use or allow access to the Ning APIs or Ning Application Source Code except as explicitly permitted under these Application Developer Terms;
modify, translate, adapt, or prepare derivative works from the Ning APIs or Ning Application Source Code except as explicitly permitted under these Application Developer Terms or under applicable law;
attempt to conceal your identity or Your Application’s identity when requesting authorization to use Ning APIs or Ning Application Source Code;
use an unreasonable amount of bandwidth as determined by Ning in its sole discretion;
use the Ning APIs for any application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code;
design Your Application for the purpose of facilitating the access, storage, distribution or other exploitation of copyrighted or proprietary content without the authorization of the content owner;
design or implement Your Application in a way that, as determined by Ning in its sole discretion, might mislead a user into believing that: (i) he or she is interacting directly with the Ning Platform when interacting with Your Applications, or (ii) any of Your Applications were created by or are endorsed by Ning;
use the Ning Platform as a generic file hosting service;
obtain access to the Ning Platform without authorization;
use the Ning APIs in a manner that adversely impacts the stability of Ning’s servers or the Ning Platform or adversely impacts the behavior of other applications using the Ning APIs, in Ning’s sole determination; or
use the Ning APIs for the purpose of collecting personally identifiable information of any User without such User’s permission.

11. Ownership; Your Licenses

Ning Ownership

The term “Ning Properties” means the Ning APIs, Ning Application Source Code and any data, content, code, APIs, tools or other information or materials provided by Ning through or in connection with the Ning APIs, Ning Application Source Code and Ning Platform. You agree that, as between you and Ning, Ning owns all right, title and interest, including all intellectual property, in and to the Ning Properties. All rights not expressly granted hereunder are reserved by Ning. Except for the limited licenses expressly granted herein, these Application Developer Terms grant you no right, title, or interest in any intellectual property owned or licensed by Ning, including (but not limited to) the Ning Properties, Ning APIs, Ning Application Source Code and Ning Marks (as defined below). The Ning Properties are protected by United States copyright laws and international treaty provisions. You agree to abide by all copyright notices, information, or restrictions contained in any part of the Ning Properties. You must not alter, delete, or conceal any copyright, trademark, patent, or other notices contained on the Ning Properties, including notices on any Ning Technology you download, transmit, display, print or reproduce from or using the Ning Properties. Additionally, Member Content is owned by Members of the Ning Platform or other third parties, and not by Ning. Nothing in these Application Developer Terms grant you any right, title, or interest to such Member Content. Any rights granted hereunder are granted solely to you and not, by implication or otherwise, to any parent, subsidiary, or affiliate of you.

Third Party Application Developer Ownership and License

You own Your Applications (subject to Ning’s underlying rights in the Ning Platform and the Ning Properties). You hereby grant to Ning a non-exclusive, sublicenseble, transferable, fully paid and royalty-free, worldwide license under all rights (including under any patent issued) to (i) access, reproduce, publicly perform, publicly display, and store and cache on our servers Your Application, including the right to link to, frame or embed Your Application and the right to allow third parties or Ning to display advertising and other content with and in connection with Your Application; and (ii) otherwise access, use and analyze Your Application for our internal business purposes. The foregoing license does not limit Ning’s rights under any third party or open source license under which Your Application is licensed.

12. Independent Development; Feedback

You agree that Ning may be independently developing software, products or services that may be similar to Your Application, and nothing in this Agreement will be construed as restricting or preventing Ning from creating and fully exploiting such software, products, content, services or other items, without any obligation to you.

You may from time to time elect, in your sole discretion, to provide suggestions, comments, improvements, ideas, recommendations or other feedback or materials to us related to the Ning Platform, Ning APIs, Ning Application Source Code or Ning Properties, including on the Ning Open Social Directory (“Feedback“). If you elect to provide us any such Feedback, you hereby assign all ownership in and to such Feedback to us, and acknowledge that we will be entitled to use and implement any such Feedback in any manner without restriction, and without any obligation of confidentiality, attribution or compensation to you. To the extent the foregoing is deemed ineffective, you also hereby grant Ning a nonexclusive, transferable, royalty free, fully paid up license to use and otherwise exploit Feedback.

13. Publicity; Trademark Usage

Subject to and in accordance with the terms and conditions of these Terms, Ning grants you a limited, non-exclusive, non-transferable right (with no right to sublicense) to display the Ning Marks, in the form provided by Ning, solely for the purpose of indicating that Your Application was created to interface with the Ning Platform. You shall in no way imply endorsement by Ning of Your Application or any other product or service. Ning retains the right to modify or change its Ning Marks at any time. Ning reserves all rights in and to the Ning Marks and changes thereto, and you agree to only use the most current version of such changed Ning Marks and not any prior versions. You acknowledge that all goodwill generated through your use of the Ning Marks will inure solely to the benefit of Ning and you hereby assign and agree to assign to Ning any and all goodwill generated through your use of the Ning Marks, without any payment or other consideration of any kind to you. You further agree to take all actions necessary to effect the foregoing assignment. You must not and you hereby agree that you will not use the Ning Marks other than as contemplated by these Application Developer Terms and as provided by Ning to you and will not remove, obscure, modify, or alter any Ning Marks. Upon termination of these Developer Terms, you shall immediately cease to use the Ning Marks.

Apart from providing attribution as expressly described in this Section, you shall not, unless we otherwise consent in writing, use the name “Ning” in any way, including, but not limited to, as any part of the name of Your Application. Examples of prohibited uses include “Ning [Your Application name]”, “[Your Application name] for Ning,” or “[application name]Ning.” Further, you may not use the term “Ning”, or variations of “Ning”, in the name of a URL. For example, URLs such as “ning.xxx.com”, or “ningapps.net” are expressly prohibited.

You agree that Ning, in its sole discretion, may use and refer to your trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or identification in marketing materials, financial reports, presentations, website materials, customer lists and other media now known or hereafter discovered in connection with the marketing, advertising and promotion of the Ning Platform, and any products, goods, features, capabilities and/or services associated with the Ning Platform and your use of the Ning APIs or Ning Application Source Code.

14. Termination

Your license to the Ning APIs and Ning Application Source Code under these Application Developer Terms continues until terminated by yourself or Ning. You may terminate the license and these Application Developer Terms by discontinuing use of the Ning APIs and Ning Application Source Code. You acknowledge and agree that Ning may at any time and in its sole discretion, without liability, with or without cause and with or without notice; (a) terminate the license to the Ning APIs or Ning Application Source Code; (b) terminate or suspend your access to the Ning Platform; (c) terminate these Application Developer Terms; (d) remove, block, delete or disable access to Your Application or any portion or feature of any of Your Application or Member Content, including, if we determine in our sole discretion, that Your Application is unsuitable for the Ning Platform or its Users. We further reserve the right, without liability, with or without notice and with or without cause, to discontinue the Ning Platform and/or any portion or feature thereof for any reason in our sole discretion. Additionally, your rights to use the Ning APIs, Ning Application Source Code or Ning Properties will terminate immediately if you violate any of the terms and conditions herein. Ning also reserves the right to disable any Member’s access to Your Application at any time, in its sole discretion, without notice or liability to you.

Upon expiration or termination of the license granted herein, you must immediately discontinue any and all use of the Ning APIs and Ning Application Source Code and delete all Ning Properties in your possession or control (including from Your Applications and your servers).

Sections 4, 6, 7, 10-14, 16 – 24 together with any accrued but unpaid payment obligations you may have hereunder and any definitions that are necessary to give effect to the foregoing provisions, will survive any termination of this Agreement and will continue to bind you and Ning in accordance with their terms. Any licenses granted by you herein shall survive any termination of this Agreement.

15. Third Party Content

You acknowledge that Ning does not manage or control the Member Content that you or other Users of the Ning Platform access, store, or distribute through the Ning APIs, and Ning accepts no responsibility or liability for that information regardless of whether such Member Content is transmitted to or by you in breach of these Application Developer Terms. Ning makes no warranty with respect to such Member Content you may access, store or distribute through the Ning APIs. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Ning with respect to Member Content that you choose to access, store or distribute, through the Ning APIs.

16. Fees; Taxes

Ning reserves the right to charge a fee for using the Ning APIs or Ning Platform in its sole discretion. You are responsible for paying any governmental taxes imposed on your use of the Ning Platform or Ning APIs, including, but not limited to, sales, use or value-added taxes. To the extent Ning is obligated to collect such taxes, the applicable tax will added to any fees Ning may charge.

17. Representations and Warranties

You hereby represent and warrant to Ning that:

(a) you will comply with all applicable local, state, national and international laws (including the CAN-SPAM Act of 2003), rules, and regulations in connection with your use of the Ning Platform, Ning APIs and Ning Properties, including your promotional or other activities off the Ning Platform that relate to Your Application;
(b) you have the right to grant to Ning the rights granted herein and you own or have all necessary rights, title and interest in and to Your Application and Your Application does not and will not (i) infringe, violate or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral rights, privacy rights, rights of publicity, or any other intellectual property or proprietary right, or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any person;
(c) you shall not sell, resell, lease, redistribute, license, sublicense or transfer all or any portion of the Ning Platform, Ning APIs, Ning Properties or the rights granted herein; and
(d) none of Your Application contains any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots, or other computer programming routines that may potentially damage or interfere with the Ning Platform, or intercept or expropriate any system data or personal information from the Ning Platform.

18. Release and Indemnification

You hereby irrevocably and unconditionally release and covenant not to sue Ning and its affiliates, and each of their officers, directors, agents, shareholders, employees and representatives, for any and all claims, costs, losses, liabilities and damages of any sort (whether direct, indirect, special, consequential, or otherwise, and whether arising in tort (including negligence (whether active, passive or imputed)), contract, warranty, strict liability, reliance or under any other theory, and whether or not Ning has been advised of the possibility of such damages) arising out of or in any way connected to: (i) Your Application or any intellectual property you develop that is based on, uses, or relates to the Ning Platform, Ning APIs, Ning Application Source Code or Ning Properties; and (ii) which otherwise may arise in connection with your use of, reliance on, or reference to the Member Content, Ning Platform, Ning APIs, Ning Application Source Code or Ning Properties. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

In addition to the indemnification provisions in the Ning Terms of Service, you hereby agree to indemnify, defend and hold harmless Ning, its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from any third-party claim, demand, loss, damage, cost, or liability (including reasonable attorney’s fees) arising out of or relating to: (i) your breach or alleged breach of these Application Developer Terms; (ii) your use of or interaction with the Ning Platform, Ning APIs, Ning Application Source Code and Ning Properties, (iii) Your Application, (iv) your violation of any law, treaty, regulation or other governmental order, (v) your violation of the proprietary or other rights of third parties, or your use or misuse of any User data (including Ning Member Data or Network Member Data), including in violation of the Ning Privacy Policy. Ning reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Ning, and you agree to cooperate with Ning’s defense of these claims. You agree not to settle any matter without the prior written consent of Ning. Ning will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

19. Disclaimer

The following terms are in addition to the disclaimers in the Ning Terms of Service.

YOUR USE OF THE NING PLATFORM, NING APIS, NING APPLICATION SOURCE CODE, NING PROPERTIES AND THIRD PARTY SOFTWARE ARE AT YOUR SOLE RESPONSIBILITY AND RISK. THE NING PLATFORM, NING APIS, NING APPLICATIONS SOURCE CODE, NING PROPERTIES AND THIRD PARTY SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NING, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT.

NING DISCLAIMS ANY WARRANTY THAT THE NING PLATFORM, NING APIS, NING APPLICATION SOURCE CODE, NING PROPERTIES OR THIRD PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE NING PLATFORM, NING PROPERTIES, THIRD PARTY SOFTWARE OR THE SERVER THAT MAKES THE NING PLATFORM, NING APIS, NING APPLICATION SOURCE CODE, NING PROPERTIES AND THIRD PARTY SOFTWARE AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE NING PLATFORM, NING APIS, NING APPLICATION SOURCE CODE, NING PROPERTIES OR THIRD PARTY SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NING OR THROUGH OR FROM THE NING PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

NING IS NOT RESPONSIBLE FOR THE CONDUCT OF ANY USER OF THE NING PLATFORM, NING APIS, NING APPLICATION SOURCE CODE, NING PROPERTIES OR THIRD PARTY SOFTWARE, INCLUDING ANY USE OR MISUSE OF YOUR APPLICATION BY ANY USER OF THE NING PLATFORM.

20. Limitations of Liability

The following terms are in addition to the limitations of liability in the Ning Terms of Service:

UNDER NO CIRCUMSTANCES SHALL NING, OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS, BE LIABLE TO YOU FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS, REVENUE, OR ANTICIPATED PROFITS, COST OF COVER, OR OTHER INTANGIBLE LOSSES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT NING WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NING’S LIABILITY TO YOU (IN THE AGGREGATE FOR ALL POTENTIAL CLAIMS BY YOU) EXCEED THE GREATER OF (i) THE FEES PAYABLE BY YOU TO NING UNDER THESE APPLICATION DEVELOPER TERMS DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO THE CLAIM OR (ii) $100.

CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE APPLICATION DEVELOPER TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.

21. Confidential Information

Any materials and information relating to Ning (including Ning Technology, the Ning Platform, Ning APIs, Ning Application Source Code and the Ning Properties) that becomes known to you, whether orally, in writing, or by inspection of tangible objects, including technical data, research, product plans, or know-how, or otherwise, and that either is designated as confidential by Ning or that is not generally known or readily ascertainable to the public constitutes and contains proprietary and confidential information of Ning (“Ning Confidential Information”). You may not disclose Ning Confidential Information to any person other than your employees with a need to know such information or consultants under contract to you who have agreed in writing to be bound by confidentiality restrictions at least as protective of the Ning Confidential Information as these Application Developer Terms. You may not use the Ning Confidential Information for any purpose other than to exercise your rights under these Application Developer Terms. You shall take reasonable measures to protect the secrecy of and to avoid the unauthorized use and disclosure of the Ning Confidential Information. You shall immediately notify Ning in the event you become aware of any unauthorized or suspected unauthorized use or disclosure of Ning Confidential Information. All Ning Confidential Information remains the property of Ning, and no license or other right in any Ning Confidential Information is granted hereby. You will not use any Ning Confidential Information for the benefit of anyone other than Ning. Upon Ning’s written request, you will destroy or return to Ning all Ning Confidential Information in your possession. In addition to the terms of this provision, you and Ning will continue to be subject to any non-disclosure agreement that you and Ning have entered into separately. This provision will survive any termination of these Application Developer Terms.

22. No Third Party Beneficiaries

The parties specifically disavow any desire or intention to create a “third party” beneficiary contract, and specifically declare that no person, except for the parties and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.

23. Relationship of the Parties

The parties are independent contractors with respect to each other. These Application Developer Terms do not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship. You agree that Ning has no special relationship with or fiduciary duty to you. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party.

24. Miscellaneous

You may not delegate your duties under this Agreement or assign this Agreement or your account credentials in whole or in part. Ning may assign any of its rights and obligations under these Application Developer Terms without consent, including in connection with any merger (including by operation of law), consolidation, reorganization, or sale of all or substantially all of its related assets or similar transaction. These Application Developer Terms shall be binding on the parties’ permitted assignees, transferees and successors. These Application Developer Terms shall be governed by, and construed in accordance with, the laws of the State of California, without reference to the choice of law doctrine of California. The parties agree that the federal and state courts in Santa Clara County, California will have exclusive jurisdiction over these Application Developer Terms, and the parties hereby agree to submit to such jurisdiction exclusively. No single or partial exercise of any right or remedy under these Application Developer Terms by Ning will preclude any other or further exercise of any other right or remedy of Ning under these Application Developer Terms or as provided at law or in equity. Rights and remedies provided in these Application Developer Terms are cumulative and not exclusive of any right or remedy provided at law or in equity. Section or paragraph headings used in these Application Developer Terms are for reference purposes only, and may not be used in the interpretation hereof. The terms “including” and “includes” shall be deemed to be followed by the statement “without limitation” and neither of these terms shall be construed to limit any word or statement it follows to the specific or similar terms or matters immediately following it. These Application Developer Terms may not be modified except in writing, signed by both parties, or by a change to these Application Developer Terms or Application Developer Guidelines made by Ning as set forth in Section 2 (Modifications) above. If any provision, or portion thereof, of these Application Developer Terms is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of these Application Developer Terms, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct. The failure by Ning to insist upon the strict performance of these Application Developer Terms, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect. These Application Developer Terms and any terms that are incorporated herein by reference or to which these terms have been incorporated by reference set forth the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements. These Application Developer Terms are in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the parties hereto.

25. Contact Information

If you would like to contact us regarding the Ning APIs, Ning Properties or these Application Developer Terms, please email us at: termsofservice@ning.com. Alternatively, you may send us communications in writing at Ning Interactive, Inc. 1906 El Camino Real, Menlo Park, CA 94027.