Application Developer and API License Agreement

Last modified: August 1, 2010

This Application Developer and API License Agreement (the "Agreement"), effective as of the date of acceptance of this Agreement (the "Effective Date"), is by and between Feng-GUI ("Feng-GUI") and you, or the individual, company or other entity that you represent ("Licensee" or "you"). If you are entering into this Agreement on behalf of a company or other entity, you represent and warrant that you have authority to bind such company or other entity to this Agreement.

By building applications that interact with Feng-GUI's products and services (the "Feng-GUI Services") or by using the Feng-GUI API (as defined below), including but not limited to requesting authentication credentials or making calls to the Feng-GUI API, you unconditionally consent and agree to be bound by and a party to this Agreement.

This Agreement sets forth the rules around use of the Feng-GUI Services, the Feng-GUI API, and content shared on Feng-GUI that is accessible (through the Feng-GUI API or otherwise) for application development. Our hope is to encourage a thriving ecosystem of applications built on top of Feng-GUI, balanced against protection of our network, our users, and our business. If you feel that we should make changes to this Agreement, or if you seek a waiver from certain provisions herein, please contact us at info at Feng-GUI.

1. Purpose.
Use of Licensed Materials.
This Agreement governs the use by Licensee of the following, all of which collectively are the "Licensed Materials": The application programming interface ("API") of Feng-GUI and any accompanying or related documentation, source code, executable applications and other materials (collectively, the "Feng-GUI API"), including, but not limited to, as made available through Feng-GUI's developer website (the "Developer Website"), as modified from time to time.
Use of Feng-GUI Marks.
This Agreement also governs the use by Licensee, and restrictions on such use, of Feng-GUI's name, trademarks, service marks, logos and other branding made available for use in connection with the Licensed Materials (the "Feng-GUI Marks").

2. License.
Subject to the terms and conditions of this Agreement, including the restrictions set forth in Section 3, Feng-GUI grants to Licensee a nonexclusive, nontransferable, nonsublicensable, worldwide, revocable right and license during the Term to: (a) use and make calls to the Feng-GUI API and to make use of the Feng-GUI Services (and Licensed Materials accessible therefrom) to develop, implement and distribute software applications, services or products (the "Licensee Applications") that interact with the Feng-GUI Services; (b) use, reproduce, distribute, transmit, display and perform the Content, and modify the Content only to the extent necessary to format and display it through the Licensee Applications and (c) use and display the Feng-GUI Marks only to identify that the Licensed Materials originate from the Feng-GUI Services. Licensed Applications do not include those applications that use or access the Feng-GUI API or the Feng-GUI Services in order to monitor the availability, performance, or functionality of any of the Feng-GUI API or the Feng-GUI Services, for any other benchmarking or for other competitive purposes.

3. Restrictions.
The licenses granted in Section 2 are explicitly conditioned on Licensee's adherence to the following restrictions.
3.1. Compliance with this Agreement, Policies and Guidelines.
Licensee must comply with the restrictions set forth in this Agreement, the Feng-GUI Terms of Service and the Feng-GUI Privacy Policy in all uses of the Licensed Materials. If Feng-GUI believes, in its sole discretion, that Licensee has violated or attempted to violate any term, condition or the spirit of this Agreement, Licensee's license to and ability to use and access the Licensed Materials may be temporarily or permanently revoked, with or without notice to Licensee.
3.2. No Substantial Replication.
Licensee shall not substantially replicate products or services offered by Feng-GUI, but is explicitly permitted to create specialized versions or extensions of such products or services. For example, Licensee is not permitted to fully replicate the Feng-GUI Dashboard product, but may create specialized views of Content from a user's Dashboard or cross-platform variants of the Feng-GUI Dashboard.
3.2. No Compromising Feng-GUI Security.
Licensee is not permitted to use the Licensed Materials in any manner that does or could potentially undermine the security of the Feng-GUI Services or the Licensed Materials. In addition, Licensee shall not, and shall not attempt to, interfere with, modify or disable any features, functionality or security controls of the Feng-GUI Services or the Feng-GUI API, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Licensed Materials, or reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Feng-GUI Services or the Feng-GUI API.
3.4. Reporting Security Flaws and Unauthorized Access.
Licensee shall immediately report to Feng-GUI any security flaws Licensee discovers in any of the Feng-GUI Services or the Licensed Materials. Feng-GUI reserves the right, in its sole discretion, to determine what constitutes a security flaw. Licensee shall further immediately report any actual or suspected unauthorized access to the Feng-GUI API using Licensee's API credentials. Failure to report such flaws or unauthorized accesses, particularly prior to public disclosure, shall be considered a material breach of this Agreement.
3.5. No Phishing, Malware or Identity Theft.
Licensee shall not publish or link to malicious content intended to damage, disrupt or exploit a user's browser, computer or Feng-GUI account or to compromise a user's privacy or credentials in any manner. In addition, Licensee shall not collect, or try to collect, a user's Feng-GUI credentials, including but not limited to usernames or passwords.
3.6. Respect for API Limitations.
Licensee shall respect the letter and the spirit of the programmatic limitations of the Feng-GUI API and the restrictions of this Agreement in designing and implementing Licensed Applications. For example, Licensee shall not work around any explicit Feng-GUI API limitation using a series of non-API calls, even if such work-arounds are possible by avoiding use of the Feng-GUI API. Specific prohibited actions include the process of "page scraping," which is the process of downloading and parsing whole Feng-GUI pages in order to build Licensee Applications with capabilities beyond those intended to be provided by the Feng-GUI API. In addition, Licensee shall comply with any limitations on the frequency of access, calls and use of the Feng-GUI API as provided to Licensee by Feng-GUI from time to time.
3.7. No Circumvention or Reverse Engineering; Maintenance of Proprietary Notices.
Licensee shall not, and shall not attempt to: (i) interfere with, modify or disable any features or functionality of the Feng-GUI Services or Feng-GUI API, including, without limitation, any mechanisms used to restrict or control the Feng-GUI Services or Feng-GUI API, such as anti-circumvention measures; (ii) translate, reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Feng-GUI Services or the Licensed Materials; (iii) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Feng-GUI Services or the Licensed Materials; or (iv) remove or modify any proprietary notices, attribution or marks from or delivered as part of the Feng-GUI Services or the Licensed Materials.
3.8. Indicating Use of the Feng-GUI Services and the Feng-GUI API.
In a prominent location in all Licensed Applications, Licensee should, to the extent reasonable based on the nature of the Licensed Application, indicate that such Licensed Applications have been created using the Feng-GUI Services and/or the Feng-GUI API, and shall comply with the Feng-GUI Trademark Guidelines in doing so.
3.9. Use of Feng-GUI Marks.
Licensee may not, under any circumstances: (i) include in or use the Feng-GUI Marks, or any marks that are confusingly similar to or derivative of the Feng-GUI Marks ("Confusing Marks"), as part of Licensee's trade name (registered or otherwise), logos or other identifiers of Licensee; (ii) include in or use the Feng-GUI Marks or any Confusing Marks as part of any names, domain names logos or other identifiers of Licensee Applications; or (iii) use the Feng-GUI Marks or Confusing Marks in a manner that creates or may create a sense of endorsement, sponsorship or association with Feng-GUI, unless expressly permitted by Feng-GUI, in writing, to do so. All use of the Feng-GUI Marks, and any goodwill arising out of such use, shall inure to the benefit of Feng-GUI. Licensee may freely state and disclose that Licensee is using the Feng-GUI Services or the Feng-GUI API, as long as License adheres to all restrictions on the use of the Feng-GUI Marks stated in this Agreement.
3.10. No Misleading Users.
Licensee may not, under any circumstances, whether within a Licensed Application or in materials discussing or concerning a Licensed Application, mislead, confuse or cause misapprehension or confusion among users as to the features, functionality, origin, capabilities or other aspects of said Licensed Application, Feng-GUI, the Feng-GUI Services or the Feng-GUI API.
3.11. Monitoring.
Feng-GUI reserves the right to monitor Licensee's use of the Licensed Materials for any reason or no reason, including to ensure Licensee's compliance with the terms and conditions of this Agreement.
3.12. Reporting and Statistics.
Licensee shall ensure that all Licensee Applications properly use all reporting functionality that is made available through aspects of the Feng-GUI API that are used by such Licensee Applications.

4. Modifications.
Licensee acknowledges and agrees that Feng-GUI may modify (including but not limited to updating) this Agreement, the Feng-GUI Services and the Feng-GUI API from time to time (a "Modification"). Except for modifications of the Feng-GUI Services, Licensee will be notified a Modification through notifications or posts on the Developer Website or through a form of direct communication from Feng-GUI to Licensee, including but not limited to e-mail or notifications through the Feng-GUI Services. Licensee further acknowledges and agrees that the Feng-GUI Services and the Licensed Materials may be modified at any time and without any notice to Licensee. Licensee shall, within thirty (30) days from the date of first notice of any Modification(s) (or such shorter period of time specified in the notice of the Modification(s)) comply with such modification(s) by implementing and using the most current version of the Feng-GUI API and making any changes to Licensee Applications that may be required as a result of such Modification(s). Licensee acknowledges that a Modification may have an adverse effect on Licensee Applications, including but not limited to changing the manner in which Licensee Applications communicate with Feng-GUI Services and display Content. Licensee acknowledges that its sole recourse for such adverse effects is to terminate this Agreement pursuant to Section 10, and that Licensee's continued access to or use of the Feng-GUI Services or any Licensed Materials following such thirty (30) day period shall constitute binding acceptance of the Modification(s) at issue. Feng-GUI will attempt, but is not obligated, to provide thirty (30) days notice of any Modification that is not backwards compatible or that Feng-GUI reasonably believes will remove or materially alter significant functionality of the Feng-GUI API.

5. Ownership.
Feng-GUI. Licensee acknowledges and agrees that Feng-GUI and its licensors, particularly its users, retain all worldwide right, title and interest in and to the Licensed Materials, including all worldwide intellectual property rights therein. Licensee also acknowledges and agrees that, as between Licensee and Feng-GUI, Feng-GUI owns all right, title and interest in and to the Feng-GUI Services, the Feng-GUI API, the Feng-GUI Marks, and any derivative works or enhancements thereof, including but not limited to all worldwide intellectual property rights therein. Licensee agrees not to act in any manner inconsistent with such ownership. Any of Feng-GUI's rights not expressly granted under this Agreement are withheld. Licensee agrees that it will not challenge Feng-GUI's ownership of the Feng-GUI Marks, challenge the validity of the licenses granted under this Agreement, or otherwise copy or exploit the Feng-GUI Marks during or after the termination of this Agreement, except as expressly authorized under this Agreement. If Licensee acquires any rights in the Feng-GUI Marks or any confusingly similar marks, by operation of law or otherwise, Licensee will, at no expense to Feng-GUI, immediately effectuate an assignment of such rights to Feng-GUI.
Licensee. As between Licensee and Feng-GUI, Licensee retains all worldwide right, title and interest in and to the Licensee Applications, excluding the Feng-GUI Services, the Licensed Materials, the Feng-GUI Marks, and any derivative works or enhancements thereof, including but not limited to all intellectual property rights therein.
Feedback. Licensee may provide Feng-GUI with feedback or comments related to the Licensed Material and/or Licensee's experience with and use thereof ("Feedback"). Licensee agrees that Feng-GUI and its designees and assigns shall be free to copy, modify, create derivative works of, publicly display, disclose, distribute, license, sublicense, incorporate and otherwise use Feedback, including all derivative works thereto, for any and all purposes, commercial or otherwise, with no obligation of any kind to Licensee.

6. Support.
This Agreement does not entitle Licensee to any support for the Licensed Materials, unless Licensee makes separate arrangements with Feng-GUI for such support. Any such support provided by Feng-GUI shall be subject to the terms of this Agreement as modified by a separate support agreement. Licensee is solely responsible for providing all support and technical assistance to end users of the Licensee Applications. Licensee acknowledges and agrees that Feng-GUI has no obligation to provide support or technical assistance directly to Licensee's end users and Licensee shall not represent to any of its end users that Feng-GUI is available to provide such support.

7. Content.
Creation of Content.
If a Licensee Application allows users to post Content (i.e., to generate material that will be hosted on the Feng-GUI Services): (i) Licensee will acquire such user's affirmative permission to post such Content, (ii) Licensee must promptly provide such Content to Feng-GUI via the Feng-GUI Services or the Feng-GUI API, as applicable; (iii) Licensee must provide to its users a prominent and clear disclosure detailing how Licensee may use such Content separately from transmitting that Content to the Feng-GUI Services and seeking the necessary licenses for Licensee to use such Content as disclosed; (iv) Licensee's use of Content must adhere to the restrictions set forth in Section 3; (v) Licensee must provide such users prominent access via URL to the Feng-GUI Terms of Service and the Feng-GUI Privacy Policy; and (vi) Licensee may provide Feng-GUI with an application identifier that Feng-GUI may display in conjunction with the Content.

8. Privacy.
Feng-GUI User Information.
To the extent Licensee has access to and is permitted to use Feng-GUI User Information through the Licensed Materials, such access and use shall be in accordance with the then-current Feng-GUI Privacy Policy. Licensee shall take efforts to ensure that Feng-GUI User Information disclosed in Content, inadvertently or otherwise, is not exploited for improper purposes such as identity theft, fraud or spamming.

9. Confidentiality.
Licensee may from time to time, gain access to proprietary information, technical data, trade secrets or know-how, including, but not limited to, source code, research, product plans, products, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information that is either marked as "confidential" or disclosed in such a manner that it would be apparent it should be treated confidentially ("Confidential Information"). Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Licensee may not disclose Confidential Information to a third party without the prior express consent of Feng-GUI, provided in writing or by email. Licensee agrees that it will protect Confidential Information from unauthorized use, access, or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.

10. Term and Termination; Survival.
This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section. Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to Feng-GUI, or destroy and remove from all computers, hard drives, networks, and other storage media, all copies of the Licensed Materials and any Confidential Information in Licensee's possession, and shall certify to Feng-GUI that such actions have occurred. Sections 3, 5, 6, 9 and 11-15 shall survive termination of this Agreement.

11. Representations and Warranties of Licensee.
Licensee represents and warrants that: (i) Licensee has the necessary power and authority to enter into this Agreement, and that the performance of its obligations will not constitute a breach or otherwise violate any other Agreement or the rights of any third party arising therefrom; (ii) Licensee shall maintain, throughout the Term, all required rights and licenses related to the Licensed Applications and the Licensed Applications shall not infringe or otherwise violate any third party rights, including but not limited to third party intellectual property rights; and (iii) Licensee's uses of the Licensed Materials do and shall comply with all applicable foreign, federal, state and local laws, rules and regulations.

12. Indemnification by Licensee.
Licensee will indemnify and hold Feng-GUI, its subsidiaries, affiliates, officers, employees and agents harmless from any and all claims, damages, losses, liabilities, actions, judgments, costs and expenses brought by a third party arising out of or in connection with: (i) any act or omission by Licensee in connection with Licensee's use of the Feng-GUI Services or the Licensed Materials; (ii) Licensee's use of the Feng-GUI Services or the Licensed Materials other than as expressly allowed by this Agreement; (iii) Licensee's breach of this Agreement, including but not limited to Licensee's representations and warranties herein; or (iv) any Licensed Application.

13. Disclaimer.
The Feng-GUI Services and the Licensed Materials are provided "as is" without warranty of any kind. Feng-GUI disclaims all warranties, whether express, implied or statutory, regarding the licensed materials and the Feng-GUI services, including without limitation any and all implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, title, interference with quiet enjoyment, non-infringement of third-party rights and any warranties or conditions arising out of course of dealing or usage of trade. Further, Feng-GUI disclaims any warranty that Licensee's use of the Feng-GUI Services or the Licensed Materials will meet any or all of Licensee's requirements or that such use will be uninterrupted, error-free, virus-free or secure. Some states do not allow the exclusion or limitation of implied warranties, so the above limitations and exclusions may not apply to you.

14. Limitation of Liability.
In no event shall Feng-GUI be liable to Licensee for any special, incidental, indirect, direct, exemplary, punitive, compensatory or consequential damages (including loss of use, data, business or profits) arising out of or in connection with this Agreement, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not Feng-GUI has been advised of the possibility of such loss or damage. Any claim arising our of or relating to this Agreement must be brought within one (1) year. In any case, Feng-GUI's aggregate liability under this Agreement will not exceed fifty U.S. dollars (US$50.00). The foregoing limitations will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.

15. Miscellaneous.
This Agreement, the Feng-GUI Terms of Service and the Feng-GUI Privacy Policy together constitute the entire agreement among the parties with respect to the subject matter of this Agreement and supersede and merge all prior proposals, understandings and contemporaneous communications, whether oral, written or electronic. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any modification of or changes to this Agreement must be in a writing duly authorized by an authorized representative of Feng-GUI or pursuant to Section 4 (Modifications).
Licensee may not assign any of the rights or obligations granted under this Agreement, voluntarily or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets) except with the express written consent of Feng-GUI, and any attempted assignment in violation of this paragraph is void. Feng-GUI may assign, transfer or delegate any of its rights and obligations hereunder without notice or consent. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.

This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, including its conflicts of law rules. Licensee agrees that any dispute arising from or relating to the subject matter of this Agreement shall be governed by the exclusive jurisdiction and venue of the province and federal courts of Israel. The section and paragraph headings in this Agreement, along with all provided annotations, are for convenience only and shall not affect the interpretation of this Agreement. The failure of Feng-GUI to enforce any part of this Agreement shall not constitute a waiver of its right to later enforce that or any other part of this Agreement. Waiver of compliance in any particular instance does not mean that Feng-GUI will waive compliance in the future. In order for any waiver of any covenant or right under this Agreement to be binding, such waiver must be memorialized in a writing duly authorized by Feng-GUI. Unless otherwise specified, all notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. All notices to Feng-GUI shall be sent to info@feng-gui . All notices to Licensee shall be sent to the location specified in Licensee's Feng-GUI API access registration information.