1.1 Use of the Service is Subject to these Terms. Your use of any of the Phish.Net APIs (referred to in this document as the "API(s)" or the "Service") is subject to the terms of this legal agreement between you and the Mockingbird Foundation, Inc., a not-for-profit corporation and public charity whose principal place of business is in the State of New York, United States of America (hereinafter "Mockingbird Foundation" or "Foundation"). This legal agreement is referred to as the "Phish.Net API Terms of Service" or "the Terms".
1.2 All information, data and other content published on the Phish.net websites operated by the Foundation (phish.net, m.phish.net, current.phish.net, and api.phish.net) and accessed by these APIs is owned and copyrighted © 1990 - 2016 by The Mockingbird Foundation, except for public forum comments, which are owned by their respective authors.
1.3 The Terms include a General License to use the contents accessed by the APIs for any non-commercial website or application, with proper attribution that the data is courtesy "Phish.net", "Phishnet" or "The Mockingbird Foundation". For the purposes of this agreement, a "non-commercial website or application" may have advertising or be sponsored or operated by a for-profit business, if the application itself or website access is offered free to the public.
1.4. The content accessed by the Service may not be resold or republished in any other format or by any other means, physical or electronic with or without attribution, without the further written permission from the Foundation. THIS GENERAL LICENSE ALSO DOES NOT COVER ANY OTHER COMMERCIAL USE OF THE SERVICE, such as incorporation into software operating on personal computers or mobile communications devices which are sold to the public (in particular, smartphone apps). The Foundation offers developers non-exclusive licenses for commercial uses with a reasonable royalty payment; for such a License contact the Foundation's counsel by email at the address given for notices below in Paragraph 11.1.
2.1 Clicking to Accept or Using the APIs. In order to use the APIs you must agree to the Terms. You can accept the Terms by:
(a) clicking to accept or agree to the Terms, where this option is made available to you by The Mockingbird Foundation in the user interface for the Service; or
(b) using the APIs. In this case, you understand and agree that The Mockingbird Foundation will treat your use of the APIs as acceptance of the Terms from that point onwards.
You acknowledge and agree that The Mockingbird Foundation may impose or adjust the limit on the number of transactions you may send or receive through the Service; such fixed upper limits may be set by The Mockingbird Foundation at any time, at The Mockingbird Foundation's discretion.
The Mockingbird Foundation reserves the right in its discretion to cease providing all or any part of the Service immediately without any notice if you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms). The Foundation may also discontinue or change the Service and/or the Terms of this Agreement. We will advise you by email about any such changes in the Service or Terms. Your continued use of the Service and any associated API keys after we provide notice of the changes in Services or Terms will indicate your acceptance of any such changes.
5.1 The Terms will continue to apply until terminated by either you or The Mockingbird Foundation as set out below.
5.2 You may terminate your legal agreement with The Mockingbird Foundation by discontinuing your use of the Service at any time, and removing the API code from your API Implementation. You do not need to specifically inform The Mockingbird Foundation when you stop using the Service.
5.3 The Mockingbird Foundation may, at any time, terminate its legal agreement with you or cease providing all or any part of the Service immediately without any notice if:
(a) you have breached any provision of the Terms (or have acted in manner that clearly shows that you do not intend to, or are unable to comply with the provisions of the Terms); or
(b) The Mockingbird Foundation is required to do so by law (for example, due to a change to the law governing the provision of the Service); or
(c) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires The Mockingbird Foundation to change the way The Mockingbird Foundation provides the data or services through the Service; or
(d) providing the Service could create a substantial economic burden as determined by The Mockingbird Foundation in its reasonable good faith judgment; or
(e) providing the Service could create a security risk or material technical burden as determined by The Mockingbird Foundation in its reasonable good faith judgement.
Termination of the service will result in the revocation of any associated API keys and all user accounts from your IP address, and you agree not to establish multiple user accounts as to circumvent these provisions regarding termination.
6.1 NOTHING IN THESE TERMS, INCLUDING SECTIONS 6 AND 7, WILL EXCLUDE OR LIMIT THE FOUNDATION'S WARRANTY OR LIABILITY FOR LOSSES THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF LOSS OR DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND TTHE FOUNDATION'S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
6.2 YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE AND THE CONTENT IS AT YOUR SOLE RISK AND THAT THE SERVICE AND THE CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE." IN PARTICULAR, THE FOUNDATION, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS AND THEIR SUPPLIERS, DO NOT REPRESENT OR WARRANT TO YOU THAT:
(a) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; (c) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; AND (d) THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICE WILL BE CORRECTED.
6.3 ANY CONTENT OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE, LOSS OF DATA, OR ANY OTHER DAMAGE OR INJURY THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH CONTENT.
6.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE FOUNDATION OR THROUGH OR FROM THE SERVICE OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
6.5 THE FOUNDATION, ITS LICENSORS AND THEIR SUPPLIERS FURTHER EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE FOUNDATION, ITS SUBSIDIARIES AND AFFILIATES, AND THE FOUNDATION'S LICENSORS AND THEIR SUPPLIERS, WILL NOT BE LIABLE TO YOU FOR:
(a) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS); OR
(b) ANY LOSS OR DAMAGE AS A RESULT OF:
(i) ANY CHANGES THAT The Mockingbird Foundation MAY MAKE TO THE SERVICE, OR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICE (OR ANY FEATURES WITHIN THE SERVICE); (ii) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICE; (iii) YOUR FAILURE TO PROVIDE THE FOUNDATION WITH ACCURATE ACCOUNT INFORMATION; OR (iv) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
7.2 THE LIMITATIONS ON THE FOUNDATIONS'S LIABILITY TO YOU IN SECTION 7.1 ABOVE WILL APPLY WHETHER OR NOT THE FOUNDATION, ITS SUBSIDIARIES, AFFILIATES, LICENSORS OR THEIR SUPPLIERS HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
8.1 You hereby agree to indemnify, defend and hold The Mockingbird Foundation, its strategic partners, officers, directors, agents, affiliates, licensors and their suppliers ("the Indemnified Parties") harmless from and against any claim or liability arising out of: (a) your use of the APIs in breach of the Terms or applicable policies; (b) your API Implementation; (c) any use by users of your API Implementation; (d) any claim that your API Implementation or Your Content violates any applicable law, including but not limited to any claim that your API Implementation infringes the rights of a third party.
8.2 You will cooperate as fully as reasonably required in the defense of any claim. The Mockingbird Foundation reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you. You acknowledge that damages for improper use of the APIs may be irreparable; therefore, The Mockingbird Foundation is entitled to seek equitable relief, including but not limited to preliminary injunction and injunction, in addition to all other remedies.
It is The Mockingbird Foundation's policy to respond to notices of alleged copyright infringement that comply with applicable international intellectual property law (including, in the United States, the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers.
10.1 The Service may include hyperlinks to other websites or content or resources. The Mockingbird Foundation has no control over any web sites or resources that are provided by companies or persons other than The Mockingbird Foundation. You acknowledge and agree that The Mockingbird Foundation is not responsible for the availability of any such external sites or resources, and does not endorse any advertising, products or other materials on or available from such websites or resources.
10.2 You acknowledge and agree that The Mockingbird Foundation is not liable for any loss or damage that may be incurred by you as a result of the availability of those external sites or resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products, or other materials on, or available from, such websites or resources.
11.1 Notices. You agree that The Mockingbird Foundation may provide you with notices, including those regarding changes to the Terms, by email, regular mail, or postings on the Service. For purposes of this Agreement, the Foundation may be reachable by its General Counsel and Secretary, Jack R. Lebowitz, at the following email address: jack (at) phish.net or by US Mail at 39 Garrison Road, Glens Falls, NY 12804-2002.
11.2 No Waiver. You agree that if The Mockingbird Foundation does not exercise or enforce any legal right or remedy contained in the Terms (or that The Mockingbird Foundation has the benefit of under any applicable law), this will not be taken to be a formal waiver of The Mockingbird Foundation's rights and that those rights or remedies will still be available to The Mockingbird Foundation. Any waiver of any provision of these Terms will be effective only if The Mockingbird Foundation expressly states in a signed writing that it is waiving a specified Term.
11.3 Severability. If any court of law that has jurisdiction rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
11.4 Third Party Beneficiaries. No other person or company will be a third party beneficiary to the Terms.
11.5 Assignment. The Terms may be assigned by The Mockingbird Foundation and will inure to the benefit of The Mockingbird Foundation, its successors and assigns.
11.6 Governing Law and Jurisdiction; Injunctive Relief. The Terms, and your relationship with The Mockingbird Foundation under the Terms, will be governed by the laws of the State of New York, and the United States of America, without regard to its conflict of laws provisions. You and The Mockingbird Foundation agree to submit to the exclusive jurisdiction of the Supreme Court of the State of New York located in the County of Warren, State of New York USA, to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that The Mockingbird Foundation will be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
11.7 Complete Agreement. The Terms constitute the whole legal agreement between you and The Mockingbird Foundation and govern your use of the Service and Content, and completely replace and supersede any prior agreements between you and The Mockingbird Foundation, written or oral, in relation to the Service and Content and the related use of any API keys issued under this General License.
FOR THE FOUNDATION,
s/ Jack R. Lebowitz, Sec'y and general counsel
Dated: September 16, 2010 Glens Falls, NY
Version/revision: 1.0 (Original terms)