INDEPENDENT SOFTWARE VENDOR (ISV) Terms of Service

1)      ACCEPTANCE OF TERMS

These Independent Software Vendor (ISV) Terms of Service (these “Terms”) govern your access to and use of the application programming interfaces (including webhook events), associated software and related developer services, tools and resources made available by Skimmer LLC, a Delaware limited liability company (“Skimmer”, “we”, “us” and “our”) in its sole discretion (collectively, “APIs”) in connection with the online services provided by Skimmer at https://www.getskimmer.com and related websites and mobile applications (the “Skimmer Platform”).  Skimmer may, at its discretion, update these Terms at any time. You can access and review the most current version of these Terms at the URL for this page or by clicking on the “ISV Terms of Service” link on Skimmer’s developer website, or as otherwise made available by Skimmer. Your continued use of the APIs after the effective date of the updated Terms constitutes your acceptance of the updated Terms.

PLEASE REVIEW THESE TERMS CAREFULLY. BY APPLYING FOR A DEVELOPER ACCOUNT WITH SKIMMER (A “DEVELOPER ACCOUNT”) OR OTHERWISE ACCESSING OR USING THE APIs, YOU AGREE TO BE BOUND BY THESE TERMS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THESE TERMS, YOU MAY NOT ACCESS OR USE THE APIs.

THESE TERMS REQUIRE FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS, OR YOUR ACCESS TO OR USE OF THE APIs, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THESE TERMS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 17 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by these Terms; (c) are not a person barred from using the APIs under the laws of any applicable jurisdiction; and (d) are located in the United States. THE APIs ARE NOT INTENDED FOR USERS UNDER THE AGE OF 13, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE APIs, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE OR OLDER.

IF YOU ARE ENTERING INTO THE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT ACCESS OR USE THE APIs.

2)  PURPOSE

Skimmer has invested significant resources in developing, supporting, and providing the APIs so that you and other independent software vendors and developers may integrate the APIs into your applications (each, an “Application”) in order to enhance such Applications and benefit Skimmer and its customers. Applications are intended to extend the functionality of the Skimmer services for customers and their end-users. These Terms set forth the conditions under which you may access and use the APIs for such purposes.

3)  LICENSE

Subject to and conditioned upon Skimmer’s approval of your application for a Developer Account and your continued compliance with these Terms, Skimmer hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (a) access and use the APIs solely to develop, test, and operate your approved Application, (b) make your Application available to customers and permit customers and their end-users to use the API-enabled features within your Application and (c) to display data, content, output, or other materials obtained via the APIs (collectively, “Content”) in your Application, in each case in compliance with the documentation made available by Skimmer (the “Documentation”) and these Terms. Your access to and use of the APIs must further comply in all material respects with all usage guidelines posted or provided to you by Skimmer.

Skimmer claims trademark protection over all Skimmer names, brands, trademarks, service marks or logos that Skimmer makes available in connection with the APIs (“Marks”), and you will not use the Marks except as expressly authorized herein. The Marks may not be included in or as part of any registered corporate name, trade name, domain name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Skimmer. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks, and all goodwill arising out of such use, inures to Skimmer’s benefit. You will not register, apply to register, or otherwise claim ownership of any Mark or any mark, name, or domain that is confusingly similar to any Mark, in any jurisdiction.

Subject to these Terms, you hereby grant Skimmer a non-exclusive, worldwide, royalty-free license to use your name, trademarks, logos, and descriptions of your Application solely for the purpose of identifying, promoting, marketing, or referencing your Application and its integration with the Skimmer Platform in Skimmer’s documentation, website, developer portal, directories of integrations, marketplaces, and marketing materials. Skimmer may revoke this permission at any time upon written notice to you.

Except as expressly set forth in these Terms, the Documentation, or other written agreement between you and Skimmer, neither party will publicize their relationship or any integration between Skimmer and your Application without the prior written consent of the other party.

Skimmer may, at its sole discretion, feature, reference, display, promote, or list your Application in Skimmer’s documentation, websites, developer portals, integration directories, or marketplaces (collectively, "Integration Listings"). You acknowledge and agree that Skimmer may include the following information in such Integration Listings: your name and company information; your Application’s name, description, and functionality overview; your logos, trademarks, or other brand assets; and links to your website, support resources, or contact information. Skimmer reserves the right to review your Application for security, functionality, user experience, and compliance with these Terms prior to inclusion in any Integration Listing. Notwithstanding such review, the inclusion of your Application in an Integration Listing does not constitute an endorsement, certification, warranty, or approval by Skimmer unless expressly stated in writing. Skimmer reserves the right to remove, modify, or suspend any Integration Listing at any time and for any reason in its sole discretion. Participation in any Skimmer integration directory or marketplace, whether current or future, may be subject to additional terms, policies, review processes, qualification criteria, or fees as determined by Skimmer.

4)      PROPRIETARY RIGHTS

You grant Skimmer and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with your access to or use of the APIs. You represent and warrant that you have all necessary rights to grant the foregoing license and that the content you provide does not infringe, misappropriate, or otherwise violate any third-party intellectual property or other rights. You acknowledge and agree that the technical processing and transmission of data associated with the APIs may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.

Skimmer may collect, monitor, and use data, information, and insights generated or derived from your access to and use of the APIs, including without limitation usage volumes, call frequencies, error rates, latency, feature utilization, and performance data (collectively, “Usage Statistics”). Skimmer may use Usage Statistics for any lawful business purpose, including to operate, maintain, and improve the APIs and the Skimmer Platform, to develop new features and services, for analytics, benchmarking, and market research, and for marketing purposes. Prior to any external disclosure or use of Usage Statistics for benchmarking or comparative purposes, Skimmer will de-identify and aggregate such Usage Statistics in a manner that does not identify you, your Application, your customers, or any individual end-user. Skimmer will not disclose Usage Statistics in a form that identifies you or your customers without your prior written consent. Usage Statistics do not constitute your Confidential Information and are not subject to the confidentiality obligations set forth herein.

As between you and Skimmer, Skimmer and its licensors retain all right, title, and interest in and to the APIs, the Documentation, the Skimmer Platform, Usage Statistics, all Content (except for customer data owned by customers), and all related intellectual property, including all patents, copyrights, trade secrets, trademarks, and other proprietary rights therein and all derivative works, improvements, modifications, and enhancements with respect thereto. No rights or licenses are granted to you except as expressly set forth in these Terms, and all rights not expressly granted are reserved by Skimmer. Nothing in these Terms shall be construed as granting you any right, title, or interest in or to any of Skimmer’s intellectual property, by implication, estoppel, or otherwise.

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5)  CREDENTIALS; SECURITY; CONFIDENTIALITY

a)       Skimmer will provide you with credentials (such as passwords, API keys, tokens, or client IDs) necessary to access the APIs (“Credentials”). You are responsible for keeping your Credentials confidential and secure, and you are responsible for all activities that occur under your Credentials, whether or not authorized by you. Developer credentials may not be embedded in open-source projects.

b)  You will implement and maintain reasonable and appropriate administrative, technical, and physical safeguards designed to protect the APIs, your Credentials, and any data accessed through the APIs from unauthorized access, use, alteration, or disclosure. At a minimum, such safeguards will include encryption of data obtained through the APIs in transit and at rest, role-based access controls, secure credential storage, regular security testing, and incident response procedures. You agree to notify Skimmer within twenty-four (24) hours of becoming aware of any actual or reasonably suspected security incident affecting the APIs, your Credentials, or data obtained from the APIs, and will reasonably cooperate with Skimmer in investigating and remediating such incident.

c)       “Skimmer Confidential Information” means and includes any materials, communications, and information of Skimmer, or sent to you by or on behalf of Skimmer, including, without limitation, trade secrets, information related to APIs and Skimmer’s business, Documentation, Credentials, and the content of our communications to you. If you receive any such Skimmer Confidential Information, then you will: (a) not disclose it to any third party without Skimmer’s prior written consent; (b) use it solely to exercise your rights and perform your obligations under these Terms, and for no other purpose; and (c) protect it using at least the same degree of care you use to protect your own confidential information, but in no event less than reasonable care. Skimmer Confidential Information does not include information that you can demonstrate through written records: (i) was known to you prior to disclosure by Skimmer without breach of any confidentiality obligations, (ii) was independently developed by you without use of or reference to Skimmer Confidential Information, (iii) was rightfully given to you by a third party without breach of any confidentiality obligation, or (iv) becomes public through no fault of your own. You may disclose Skimmer Confidential Information when compelled to do so by applicable law if you provide Skimmer with reasonable prior notice and cooperate with Skimmer’s efforts to obtain protective treatment of such information, unless you are prohibited by law from providing Skimmer such prior notice. You are responsible for any breach of this Section 5 by your employees, contractors, or service providers. ISV's confidentiality obligations to Skimmer, and Skimmer's confidentiality obligations to ISV, are governed by the separate non-disclosure agreement executed between the parties, which remains in full force and effect and is not superseded by these Terms.

6)  DEVELOPER APPLICATION

a)   You are solely responsible for your Application, including its development, testing, operation, support and content, and for all data your Application processes or transmits. Your Application must comply with all applicable laws. Further, you are solely responsible for the maintenance, support, and operation of your Application, including (a) responding to inquiries from customers, end-users, and other parties regarding the Application, (b) investigating and resolving technical issues, defects, and errors in the Application, (c) providing any documentation, training, or assistance required by customers to use the Application, and (d) handling complaints, disputes, and refund or chargeback requests relating to the Application. Skimmer has no obligation to provide support to customers, end-users, or other parties with respect to your Application, and you will not represent or imply that Skimmer provides such support.

b)  You agree to provide and maintain a privacy policy that complies with all applicable laws and any other terms required by applicable law with respect to your Application. Such privacy policy must accurately describe the collection, use, sharing, retention, and deletion of personal information by you in connection with your Application. Your data practices must be no less protective than, and consistent with, Skimmer’s then-current privacy policy and any end user-facing terms published by Skimmer, in each case as applicable to data accessed through the APIs. In addition to these Terms, Skimmer's Privacy Policy at https://www.getskimmer.com/home/privacy (the "Privacy Policy") applies to how Skimmer may process information pursuant to these Terms. You acknowledge and agree that by accessing or using the APIs, Skimmer may receive certain information about you, including personal information, as set forth in the Privacy Policy, and Skimmer may collect, use, disclose, store, share, and process such personal information in accordance with the Privacy Policy.

c)   You may only access, use, or process data of a customer (or such customer’s end-user) through the APIs if and to the extent (a) the customer has installed, enabled, or otherwise authorized your Application to access such data, and (b) such access is consistent with the scope of authorization granted by the customer. You will honor revocation of such authorization promptly. Authorization from a customer does not entitle you to use such data for any purpose other than providing the functionality of your Application to that customer. Customer data accessed through the APIs may only be used to provide functionality within your Application and must not be sold, disclosed, or used for any unrelated purposes. You must promptly delete customer data upon request by the customer or Skimmer.

d)  You may not engage any third-party service provider, contractor, or other party (each, a “Subprocessor”) to access, process, store, or transmit data obtained through the APIs, or to operate or support your Application’s use of the APIs, unless such Subprocessor has executed a written agreement with you that (a) protects such data with safeguards at least as stringent as those required of you under these Terms, (b) limits the Subprocessor’s use of such data solely to providing the contracted services to you and prohibits use for the Subprocessor’s own purposes, and (c) requires the Subprocessor to maintain administrative, technical, and physical safeguards at least as protective as those required of you under these Terms. You are fully responsible for your Subprocessors’ compliance with these Terms, and any act, omission, or breach by a Subprocessor will be deemed an act, omission, or breach by you. You will maintain a current list of all Subprocessors and provide it to Skimmer upon request, and you will promptly notify Skimmer of any security incident affecting a Subprocessor on the same terms as your direct notification obligation under Section 5(b).

7)  USAGE RESTRICTIONS

a)   In addition to the other terms and conditions in these Terms, except as expressly set forth herein or in another written agreement with Skimmer (including approval for use of Restricted APIs), you will not:

i)                    use the APIs on behalf of any third party;

ii)                  use the APIs in any manner that violates applicable law or regulation, or use the APIs or any Content, for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;

iii)                attempt to gain unauthorized access to, or exploit any vulnerability, defect, or misconfiguration in, the APIs, the Skimmer Platform, or any related systems or accounts;

iv)                reverse engineer, disassemble, decompile, translate or otherwise attempt to derive the trade secrets, underlying algorithms, source code, architectural framework, or data records, within or associated with the APIs, except to the extent such restriction is prohibited by applicable statutory law;

v)                  use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the APIs, except as expressly permitted under these Terms;

vi)                create or develop any application or software (including the Application) that exposes or discloses API(s) to end-users;

vii)              use the APIs in any way that subjects the API or Skimmer Platform, or any portion thereof, to any open source license;

viii)            use the APIs for the purpose of developing, marketing, selling or distributing any product or service that is primarily designed to replace or substitute for the Skimmer services, or otherwise competes with or includes features substantially similar to the Skimmer services;

ix)                develop, offer, or distribute an Application whose primary purpose is to migrate Skimmer customers off of the Skimmer Platform or any portion thereof;

x)                  impersonate any person or entity, including Skimmer personnel, or falsely state or otherwise misrepresent your affiliation with Skimmer, or any other entity or person;

xi)                use the APIs to send communications (including SMS, MMS, voice, or email) in a manner that does not comply with applicable law (including the Telephone Consumer Protection Act, CAN-SPAM Act, state mini-TCPA statutes, and applicable carrier and industry guidelines), and you must ensure that the Skimmer customer has obtained and maintains all required consents and honors all opt-out and revocation requests;

xii)              interfere with or disrupt the integrity, security, or performance of the APIs or the Skimmer Platform, including by disrupting the ability of any other person to use or enjoy the Skimmer Platform;

xiii)            circumvent or exceed any rate limits, usage quotas, or other technical restrictions applicable to the APIs, which Skimmer may establish or modify at any time in its sole discretion;

xiv)            cache, store, or retain data obtained through the APIs longer than reasonably necessary to provide the functionality of your Application to the authorizing customer, or in any manner inconsistent with the Documentation or the customer’s authorization;

xv)              use the APIs to send malware or other harmful code, or to engage in fraudulent, deceptive, or abusive practices;

xvi)            use the APIs in connection with any activity where the failure or inaccuracy of the APIs could result in death, personal injury, severe physical or environmental damage, or other catastrophic harm;

xvii)          include Content in any search engine, directory, or database accessible to third parties;

xviii)        access the Skimmer Platform, or receive or obtain Content or customer data from the Skimmer Platform, through any means, method, or channel other than the APIs as expressly authorized by these Terms, whether directly or through a Skimmer customer or other third party;

xix)            aggregate or combine Content from or about multiple Skimmer customers;

xx)              use Content obtained from one Skimmer customer to provide insights that benefit any other customer or third party;

xxi)            derive, generate, prepare, sell, license, publish, or distribute any benchmark, statistical analysis, industry report, market research, dataset, or other analytical or informational product based on or derived from Content obtained through the APIs, except for analyses provided to the authorizing customer about that customer’s own data as part of the functionality of your Application;

xxii)          monetize, commercially exploit, or derive revenue from Content obtained through the APIs, or any insights, analyses, or derivative works therefrom, except to the extent such revenue is derived solely from providing your Application’s approved services directly to the authorizing customer to whom the underlying data relates;

xxiii)        remove or obscure any proprietary notice that appears within the APIs or the Skimmer Platform;

xxiv)         forge, alter, or manipulate any headers, identifiers, signatures, or other metadata, or otherwise misrepresent the source, origin, sender, or routing of any request, communication, or content transmitted through or in connection with the APIs;

xxv)           engage in any mining, scraping, harvesting, crawling, spidering, or bulk extracting of data, Content, or information from the APIs or the Skimmer Platform, whether through automated means (including bots, spiders, scrapers, crawlers, or similar data gathering or extraction tools) or manual processes, other than as reasonably necessary to provide the functionality of your Application to the authorizing Customer;

xxvi)         collect, harvest, or compile information about Skimmer’s customers, end-users, or other third parties from the APIs or the Skimmer Platform, except as strictly necessary to provide your Application’s services to the specific Skimmer customer to whom such information relates and only as expressly permitted by these Terms;

xxvii)       use the APIs or any Content to develop, train, fine-tune, test, evaluate, benchmark, or improve any artificial intelligence, machine learning, large language model, neural network, agent, robotic process automation, or similar automated or autonomous system or technology (“AI Systems”), except as expressly permitted in writing by Skimmer;

xxviii)     use the APIs or any Content to generate synthetic, derived, or augmented datasets, embeddings, vector representations, or other artifacts intended for use in developing, training, fine-tuning, or improving any AI System;

xxix)         sell, license, transfer, or otherwise make available any Content to any third party for purposes of developing, training, or improving any AI System;

xxx)           use the APIs or any Content as input to, or in connection with, any third-party AI System, except where such use is (i) expressly permitted in the Documentation, (ii) limited to processing data for the specific authorizing customer, and (iii) subject to contractual protections prohibiting the third party from retaining, using, or training on such data; and

xxxi)         use any AI System to perform, in connection with the APIs, any action that would violate these Terms if performed directly by you.

b)  Skimmer’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of these Terms by Skimmer, and does not create a private right of action for any other party.

8)  APPROVAL; ACCOUNT REGISTRATION; AI SYSTEMS

a)       Before accessing production APIs, you must complete the application process and submit the requested information to Skimmer for review and receive Skimmer’s written approval. As part of the application and approval process, you must agree to these Terms and provide such information as Skimmer may reasonably request, including, among other things, a description of your Application, intended use of the APIs, data handling practices, and security measures. Skimmer may grant, deny, condition, or revoke approval in its sole and absolute discretion. Once approved by Skimmer, you must create an account to access and use the APIs. Your account must contain truthful, accurate and up-to-date information at all times. You agree that we can use, store, and share information submitted by you in connection with your account to contact you, for attribution purposes, to handle inquiries from Skimmer’s customers and for any other purposes under these Terms.

b)  Skimmer may, at any time and from time to time, audit, review, or test your Application and your use of the APIs to verify compliance with these Terms, the Documentation, and applicable law. You will reasonably cooperate with such reviews, including by providing requested information, access to test instances of your Application, and responses to security questionnaires.  You must notify Skimmer in advance of any material change to your Application, including changes to its functionality, data handling practices, ownership, or use of the APIs. Skimmer may require re-review and re-approval following any such change.

Use of the APIs to access endpoints, functionality, or Content beyond the scope described in your approved Application, or any material change thereto without Skimmer's prior written approval, shall constitute a material breach of these Terms.

c)   If your Application incorporates, integrates with, or relies upon any AI System (whether owned by you or a third party) in connection with the APIs, you must (a) disclose such use to Skimmer at the time you apply for access to the APIs under Section 8(a) and promptly upon any subsequent integration or material change, and (b) describe the scope of the AI System’s access to and use of the APIs and Content. Skimmer may approve, deny, or condition such use in its sole discretion, including by requiring (i) that AI System operations be limited to predefined functions within the approved scope of your Application, (ii) human authorization for any write or modify operations performed via an AI System, (iii) additional security, logging, or audit measures, or (iv) any other conditions Skimmer reasonably determines are appropriate. AI Systems must not autonomously determine which API endpoints to access, what Content to request or modify, or what actions to take through the APIs beyond the predefined operations approved by Skimmer. Use of an AI System in connection with the APIs without prior disclosure to, and approval by, Skimmer shall constitute a material breach of these Terms.

9)  FEEDBACK

If you elect to provide or make available to Skimmer any suggestions, comments, ideas, improvements or other feedback relating to the APIs or Skimmer Platform (“Feedback”), you hereby assign to Skimmer all right, title, and interest in and to such Feedback, including all intellectual property rights therein. To the extent any such assignment is not effective, you grant Skimmer a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you. You waive any and all moral rights you may have in any Feedback.

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10)  FEES

Access to and use of the APIs, including any applicable fees are governed by a written order form executed by both parties prior to commencing development or deployment (the “Order Form”), which is incorporated into and made a part of these Terms. If you fail to pay any fees due under the terms of the Order Form, Skimmer may suspend or terminate your access to the APIs without prior notice and remove Integration Listings.

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11)  INDEMNIFICATION

You agree to defend, indemnify and hold Skimmer and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Skimmer Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, costs, and expenses to the extent resulting from or arising out of any third party claim, demand, or action due to (a) your Application; (b) content you provide to Skimmer; (c) your violation of these Terms, any law or regulation, or any rights (including intellectual property and privacy rights) of another party; (d) your use of the APIs, except as expressly permitted in these Terms; (e) any security incident involving your Application, your systems, or any systems used by you or your service providers in connection with the APIs, regardless of whether such security incident constitutes a breach of these Terms; or (f) any acts or omissions of your Subprocessors in connection with the APIs or customer data.

Without limiting the generality of the foregoing, you agree to indemnify, defend and hold harmless the Skimmer Parties from and against any and all claims alleging that your Application, your use of the APIs, or any content you provide through the APIs infringes, misappropriates, or otherwise violates any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of any third party.

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12)  INSURANCE

You agree to maintain, at your own expense, throughout the time period that you use the APIs, insurance policies with financially sound and reputable insurers providing coverage of at least the following types and minimum amounts:

a)       Commercial General Liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate;

b)      Technology Errors & Omissions / Cyber Liability insurance, covering claims arising from or related to your Application, data breaches, and unauthorized access to or disclosure of data obtained through the APIs, with limits of not less than $2,000,000 per claim and in the aggregate; and

c)       Workers' Compensation insurance as required by applicable law, and Employer's Liability insurance with limits of not less than $1,000,000 per occurrence.

Upon Skimmer's request, you agree to provide a certificate of insurance evidencing the coverage required herein. You will provide Skimmer with at least thirty (30) days’ prior written notice of any cancellation or material reduction in coverage. The insurance requirements in this Section do not limit or cap your indemnification obligations under Section 11 (Indemnification).

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13)  DISCLAIMER OF WARRANTIES

YOUR USE OF THE APIs IS AT YOUR SOLE RISK. THE APIs AND ALL MATERIALS THEREIN AND CONTENT RECEIVED THEREFROM, AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY SKIMMER UNDER OR IN CONNECTION WITH THESE TERMS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SKIMMER PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

SKIMMER PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE APIs WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE APIs WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE APIs WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.

ALL CONTENT MADE AVAILABLE THROUGH THE APIs OR THE SKIMMER PLATFORM IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.

THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THESE TERMS (UNLESS SUCH LAW PROVIDES OTHERWISE).

SKIMMER PARTIES MAKE NO WARRANTY, REPRESENTATION, OR GUARANTEE WITH RESPECT TO SERVICES OFFERED BY THIRD-PARTY SERVICE PROVIDERS, AND SKIMMER PARTIES SPECIFICALLY DISCLAIM ANY WARRANTY, REPRESENTATION, OR GUARANTEE WITH RESPECT TO THE QUALITY, SAFETY, LEGALITY, OR OTHER CHARACTERISTICS OF SUCH SERVICES AND THE CONDUCT OF ANY THIRD-PARTY SERVICE PROVIDER.

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14)  LIMITATION OF LIABILITY

a)      SKIMMER PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF SKIMMER PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL SKIMMER PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE APIs, CONTENT, DOCUMENTATION OR SKIMMER PLATFORM EXCEED THE GREATER OF (A) THE TOTAL FEES PAID BY YOU TO SKIMMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR (B) ONE THOUSAND DOLLARS ($1,000).

b)      THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.  INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.  THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

15)  SUSPENSION AND TERMINATION

a)   You may stop using the APIs at any time with or without notice. Either party may terminate these Terms at any time upon thirty (30) days’ written notice to the other party. Notwithstanding the foregoing, Skimmer may terminate these Terms immediately upon written notice if you breach these Terms. All fees paid by you prior to the effective date of termination are non-refundable and no credits or refunds will be issued for any prepaid but unused period, regardless of the reason for termination.

b)  If you violate these Terms or Skimmer determines, in its sole discretion, that your use of the APIs poses a security, legal, or operational risk to Skimmer, its customers, end-users, or third parties, Skimmer may, with or without notice to you, immediately suspend or terminate your access and use of the APIs.

c)   Skimmer reserves the right at any time to modify, limit, restrict, suspend or discontinue all or a portion of the APIs, with or without notice, and Skimmer shall not be liable to you or any third party for any such modification, limitation, restriction, suspension or discontinuance, and that no such modification, limitation, restriction, suspension or discontinuance shall entitle you to any compensation, credits, damages or other remedy, whether under these Terms or otherwise. Skimmer will use commercially reasonable efforts to provide advance notice of material breaking changes, but is not required to do so where Skimmer determines, in its reasonable discretion, that immediate change is necessary for security, legal, or operational reasons. You are solely responsible for maintaining your Application to remain compatible with the then-current version of the APIs.

d)  Upon termination of these Terms or discontinuation of your access to the APIs for any reason, all rights and licenses granted to you under these Terms will immediately cease and: (i) Skimmer, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the APIs and delete all Credentials, Documentation and data obtained from Skimmer in your possession, except as required by applicable law; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of these Terms shall survive such expiration or termination. Sections 4, 5, 6, 9, 11, 13, 14, 15(d), 16, 17, 18, and 19 shall survive the expiration or termination of these Terms. Further, you agree that Skimmer shall not be liable to you or any third party for any termination of your account or access to the APIs.

16)  GOVERNING LAW

These Terms shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to these Terms, regardless of the states in which the parties do business or are incorporated.

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17)  BINDING ARBITRATION AND CLASS ACTION WAIVER

a)   ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THESE TERMS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

b)  The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

c)   WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

d)  Notwithstanding anything to the contrary, you and Skimmer may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights or Confidential Information, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 17. You acknowledge that any breach or threatened breach of Sections 3 (License), 4 (Proprietary Rights), 5(c) (Skimmer Confidential Information), 7 (Usage Restrictions), or 9 (Feedback) would cause irreparable harm to Skimmer for which monetary damages would be an inadequate remedy, and you consent to Skimmer seeking injunctive or other equitable relief without the requirement of posting a bond or proving actual damages.

e)   If Skimmer implements any material change to this Section 17, such change shall not apply to any Claim for which you provided written notice to Skimmer before the implementation of the change.

18)  LEGAL COMPLIANCE

You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where any product or service is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

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19)  GENERAL PROVISIONS

These Terms constitute the entire agreement between you and Skimmer concerning your access to and use of the APIs. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Skimmer with respect to such subject matter. In the event of any conflict between or among these Terms and any end user license agreement, privacy policy or usage guidelines to which these Terms refers, the terms and conditions of these Terms shall take precedence and govern. These Terms may not be amended by you except in a writing executed by you and an authorized representative of Skimmer. All notices, demands or consents required or permitted under these Terms shall be in writing and may be provided by email to the email address associated with your account (in the case of notice from Skimmer to you) or to legal@getskimmer.com (in the case of notice from you to Skimmer). Except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms. For the purposes of these Terms, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under these Terms without the prior written consent of Skimmer. Skimmer may assign these Terms in their entirety without your consent, including to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Skimmer’s assets. The failure of Skimmer to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of these Terms. Any prevention of or delay in performance by Skimmer hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.

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