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AMERICAN EXPRESS EXPRESS CHECKOUT
DEVELOPER PORTAL TERMS OF USE

Last Modified: August 27, 2015


AMEX EXPRESS CHECKOUT DEVELOPER PORTAL TERMS OF USE


These Terms of Use are between you (“Developer” or “You”) and American Express Travel Related Services Company, Inc. (“AXP”) (individually, a “Party” and collectively, the “Parties”). If you have entered into an Agreement for American Express® Card Acceptance with AXP, the terms of such agreement also will apply.


Table of Contents




1. Definitions


The following terms have the meanings given below:


“Amex Express Checkout Developer Portal” means the online service made available by AXP, including the web site, support services (if any) and Sandbox, as each may be modified from time to time by AXP.


“AXP Content” means any and all manuals, user guides, specifications, technical documentation, web pages, content, data and information and/or other documentation provided by AXP through the Amex Express Checkout Developer Portal, as each of the foregoing may be modified from time to time by AXP, but excluding the AXP APIs and AXP SDKs.


“AXP Materials” means, collectively, the AXP APIs, AXP Content and AXP SDKs made available by AXP to Developer via the Amex Express Checkout Developer Portal.


“AXP API” means each of the application programming interfaces (APIs) made available by AXP through the Amex Express Checkout Developer Portal, as it may be modified from time to time by AXP.


“AXP SDK” means each of the software development kits provided by AXP, as it may be modified from time to time by AXP.


“Developer Code” means the software code developed by Developer for purposes of interfacing with the AXP APIs.


“Sandbox” means the set of web pages, interfaces, tools and online services made available by AXP for Developer to test Developer Code and make calls to the AXP APIs, as it may be modified from time to time by AXP.

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2. Licenses to Developer


2.1 License Grant. Subject to these Terms of Use, AXP hereby grants Developer a nonexclusive, worldwide, nontransferable, revocable license (without the right to sublicense) during the Term to (i) access and use the Amex Express Checkout Developer Portal (including the Sandbox) and AXP Materials, solely to develop and test Developer Code; and (ii) make a reasonable number of copies of the AXP Content for Developer’s internal use only. No right, title, or interest in or to any AXP intellectual property rights is granted or transferred to Developer except for these limited licenses.


2.2 Use Restrictions. Developer will not, and will not cause or permit any person or entity to: (a) use the Amex Express Checkout Developer Portal or AXP Materials in any manner (i) not expressly authorized by (or that is inconsistent with) these Terms of Use; (b) disassemble, decompile, decrypt, extract, reverse engineer or modify any AXP Materials, or otherwise attempt to derive the source code of any software provided in or with the AXP Materials or any algorithm, process or procedure contained within the AXP Materials; (c) rent, lease, assign, sublicense, transfer, distribute, allow access to, or time share the Amex Express Checkout Developer Portal or AXP Materials; (d) circumvent or attempt to circumvent any authentication or security measures of the AXP Materials, Amex Express Checkout Developer Portal or any other system, network, or service of AXP or its affiliates; (e) effect, or attempt to effect, any security breach or disruption of the AXP Materials, Amex Express Checkout Developer Portal or any other system, network, or service of AXP or its affiliates; (f) modify or obscure any copyright or other proprietary notices within the AXP Materials; (g) use any robot, spider, site search/retrieval application or other device to retrieve or index any portion of the AXP Materials or Amex Express Checkout Developer Portal or collect information about other developers; or (h) engage in fraudulent or illegal activity of any kind or use the Amex Express Checkout Developer Portal or AXP Materials for any unlawful, threatening, harassing, obscene or infringing purpose. Developer will not submit any production API calls and will only use anonymized, non-personally identifiable, non-live data with the Sandbox.


3. Developer Account; Account Security


3.1 Amex Express Checkout Developer Portal Account. Developer must have a current, valid Amex Express Checkout Developer Portal account (“Account”) to use the Amex Express Checkout Developer Portal, including the Sandbox. AXP may, at any time, in its sole discretion, restrict or limit access to one or more portions or features of the AXP Gateway and/or AXP Materials so that they are accessible only to certain developers or end users. Developer may close his or her Account by following the instructions provided via the Amex Express Checkout Developer Portal or the AXP Content. Once Developer’s Account is closed, Developer will not have any access to information or materials stored in the Sandbox.


3.2 Account Security. Developer is solely responsible for keeping Developer’s user ID and password confidential and for all actions performed using Developer’s Account. Developer will notify AXP immediately of any unauthorized access to or use of Developer’s user ID or password or any other security breach.



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4. Confidential Information


Developer may come into contact with, become aware of or develop information, data and/or communications of a commercially sensitive, confidential or proprietary nature of AXP, its affiliates and third-party providers ("Confidential Information"), regardless of whether labeled as confidential. Confidential Information includes AXP financial data; customer, or vendor lists or data; business, sales or marketing plans or strategies; competitive strategies; technical information; information relating to products or services; product designs or plans; economic or commercially sensitive information, policies, practices, procedures or techniques; trade secrets; terms of third party agreements; terms of these Terms of Use and any other nonpublic information relating to AXP, its affiliates, and its and their customers. Developer acknowledges Confidential Information is not readily available to the public and accordingly, Developer shall not use or disclose to any person or entity, any Confidential Information, or utilize such Confidential Information for its own benefit, or benefit of any person or entity. Developer agrees that all Confidential Information is, and shall remain, property of AXP and it does not have, nor will have, a proprietary interest therein. Developer agrees to protect the Confidential Information now and in the future using the same degree of care it uses with its own confidential information, but not less than a reasonable degree of care. Developer shall immediately notify AXP if it becomes aware of any unauthorized disclosure and shall use best efforts to regain possession and prevent further unauthorized disclosure of Confidential Information.

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5. Service Changes and Interruptions


AXP may, with or without notice, at any time, change, suspend, or discontinue any aspect of the Amex Express Checkout Developer Portal and/or AXP Materials. Without limiting the foregoing, AXP reserves the right, from time to time, without prior notice, to shut down any or all of the Amex Express Checkout Developer Portal or AXP APIs for maintenance and/or updates. AXP is not responsible or liable to Developer for any such downtime.


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6. Feedback License


Any and all ideas, suggestions, guidance, or other information or materials disclosed by Developer related to AXP’s Confidential Information and any and all intellectual property rights relating to the foregoing shall be collectively deemed “Feedback.” Developer hereby grants to AXP a nonexclusive, perpetual, irrevocable, royalty free, fully paid up, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction.


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7. Warranties


Developer represents and warrants: (a) all information provided to AXP by or on behalf of Developer in connection with its registration and use of the Amex Express Checkout Developer Portal and AXP Materials is true and accurate, (b) Developer Code does not infringe any intellectual property right of any third party throughout the world and (c) Developer and Developer Code will comply with all applicable laws.


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8. Term; Termination


8.1 Term. The term of this Agreement will commence on the date you access the Amex Express Checkout Developer Portal (the “Effective Date") and continue until terminated by either Party as set forth in Sections 7.2 or 7.3.


8.2 Termination by AXP. AXP may, without liability, suspend or terminate these Terms of Use or Developer’s access to the Amex Express Checkout Developer Portal, API Materials and/or Developer’s Account, in whole or in part, if: (i) Developer or Developer Code violates (a) any of AXP’s policies, (b) any use restrictions or (c) applicable laws; (ii) Developer breaches these Terms or Use; (iii) Developer becomes insolvent, fails to pay its debts when due, dissolves or ceases to do business, files for bankruptcy or has filed against it a petition in bankruptcy; (iv) Developer breaches its confidentiality or security obligations or tampers with, modifies, corrupts, or attempts to interfere with the security or functionality of the Amex Express Checkout Developer Portal or AXP Materials; or (v) for any reason, with or without cause, at any time upon fifteen (15) days’ notice to Developer.


8.3 Termination by Developer. Developer may, in its sole discretion at any time, and without liability to AXP, terminate this Agreement in its entirety upon thirty (30) days’ notice to AXP.


8.4 Effect of Termination. Upon termination for any reason, Developer must immediately cease all use of AXP Materials and return or destroy (as required by AXP) all AXP Content and Confidential Information in its possession.



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9. Limitation of Liability


IN NO EVENT WILL AXP, ITS AFFILIATES OR THEIR RESPECTIVE LICENSORS OR THIRD PARTY PROVIDERS BE LIABLE TO DEVELOPER OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF ANY PROVISION OF THESE TERMS OF USE OR THE USE OF OR INABILITY TO USE THE AXP MATERIALS, AMEX EXPRESS CHECKOUT DEVELOPER PORTAL, OR ANY OTHER SERVICES, SOFTWARE OR MATERIALS PROVIDED TO DEVELOPER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE), EVEN IF AXP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL AGGREGATE LIABILITY OF AXP, ITS AFFILIATES AND THEIR RESPECTIVE THIRD PARTY PROVIDERS AND LICENSORS UNDER OR IN CONNECTION WITH THESE TERMS OF USE, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE), SHALL NOT EXCEED US $1000.


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10. Indemnification


Developer will indemnify, defend and hold harmless AXP and its affiliates and their respective officers, agents, licensors, employees and contractors from and against any and all third party claims, suits, actions, or proceedings (and all related liability, loss, cost, damage, and expense, including reasonable attorneys’ fees) arising from or related to (a) Developer’s breach of these Terms of Use; (b) Developer’s use of any of the Amex Express Checkout Developer Portal and/or any AXP Materials; and/or (c) Developer’s development or use of any Developer Code and/or any other software or materials that access any AXP Materials or is otherwise provided to AXP in connection with these Terms of Use, including any alleged infringement or misappropriation of any third party’s intellectual property rights. AXP shall have the right to participate, at AXP’s expense, in its defense with counsel of its choosing. In no event shall Developer enter into any settlement or like agreement that affects AXP’s or its affiliates’ rights or binds AXP or its affiliates in any way without AXP’s prior written consent.


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11. No Warranty


AXP PROVIDES THE API GATEWAY AND AXP MATERIALS TO DEVELOPER ON AN “AS IS,” “WHERE IS,” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OR CONDITIONS OF NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. AXP MAKES NO REPRESENTATION OR WARRANTY THAT THE API GATEWAY, AXP MATERIALS OR ANY DEVELOPER CODE WILL BE ERROR FREE, RELIABLE, ACCURATE OR IN A COMPLETE OR UNCORRUPTED STATE. DEVELOPER IS SOLELY RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF USING THE API GATEWAY, AXP MATERIALS, ANY DEVELOPER CODE AND/OR ANY OTHER SOFTWARE OR MATERIALS THAT ACCESS ANY AXP MATERIALS AND ASSUMES ALL RISKS ASSOCIATED WITH EXERCISE OF DEVELOPER’S RIGHTS UNDER THESE TERMS OF USE.


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12. Governing Law


These Terms of Use will be governed by the laws of the United States and the State of New York, excluding the application of its conflicts of law rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms of Use.


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13. Alternative Dispute Resolution


a. Procedures. The Parties agree that any and all disputes, claims or controversies arising out of or related to these Terms of Use, including any claims under any statute or regulation (each, a “Dispute”), shall be submitted first to non-binding mediation. If the Dispute is not resolved through mediation, then, upon the election of any Party, the Dispute shall be submitted for binding arbitration. Unless the Parties agree otherwise, any mediation and/or arbitration shall take place in the State of New York, New York County, and shall be administered by, and pursuant to the rules of, the American Arbitration Association (“AAA”). The provisions of this Section 12 may be enforced in any court of competent jurisdiction. Each Party will be responsible for paying its respective shares of the arbitration fees (including filing, administrative, hearing and/or other fees) as provided by AAA rules. Notwithstanding anything to the contrary, AXP may seek relief in any court of competent jurisdiction as it deems necessary to enforce or protect its intellectual property rights and Confidential Information.


b. Restrictions on Arbitration. Restrictions on Arbitration. Each Dispute shall be arbitrated on an individual basis. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator’s authority to resolve a Dispute and to make awards is limited to Disputes between the Parties to these Terms of Use alone, and is subject to the limitations of liability set forth in these Terms of Use. Furthermore, Disputes brought by any Party to these Terms of Use against another may not be joined or consolidated in arbitration with any one or more Disputes brought by or against any third party, unless agreed to in writing by all Parties. No arbitration award or decision on any Dispute shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this Section 1212(b) be stricken from these Terms of Use or deemed otherwise unenforceable, then this entire Section 12 shall be stricken from these Terms of Use.


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14. Assignment


These Terms of Use may not be assigned or transferred by Developer (in whole or in part, and whether voluntarily, involuntarily, or by operation of law) without the prior written consent of AXP and any attempt by Developer to do so will be null and void and of no effect.


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15. Relationship of the Parties


The relationship of the Parties established by these Terms of Use is that of independent contractors. No Party has the authority to bind the other or assume or create any obligation or liability on the other’s behalf. These Terms of Use are for the sole benefit of the Parties and their successors and permitted assigns, and nothing in these Terms of Use shall give or be construed to give any person or entity other than the Parties any legal or equitable rights.


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16. Notices


Notices will be in writing and delivered as follows. Notices from Developer to AXP will be sent by courier or overnight delivery to American Express Travel Related Services Company, Inc., American Express Tower, Three World Financial Center, 200 Vesey Street, New York, NY 10285, Attn: General Counsel’s Office, Litigation Department. Notices from AXP to Developer will be sent by electronic mail to the address Developer provided when registering for its Account. Any Party may change its address upon notice.


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17. Amendment; Waiver; Severability


These Terms of Use may be modified or waived only by a written document signed by authorized representatives of all Parties. Waiver of any breach or default of these Terms of Use will not constitute a waiver of any subsequent breach or default. If any provision is invalid or unenforceable, that will not affect the validity or enforceability of remaining terms of these Terms of Use, and such provision will be enforced to maximum extent permissible under applicable laws to affect the intent of the Parties.


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18. Survival; Entire Agreement


Any provision that contemplates or governs performance or observance subsequent to termination or expiration of these Terms of Use will survive the expiration or termination of these Terms of Use for any reason, including without limitation, Sections 1, 4, 6, 7, 8.4 and 9-18. These Terms of Use constitute the complete agreement between the Parties with respect to their subject matter, and supersede any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such matters.


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