These Strike API Terms (“API Terms”) are a legal agreement between you (if you are an individual or your business is a sole proprietorship) or your business (if you are signing up on behalf of a company, corporation, organization, educational institution, agency, or other legal entity as its authorized representative) (“Developer”, “you”, or “your”) and Zap Solutions Holdings, Inc. (“Strike”, “we”, “our”, or “us”) governing your use of the application programming interfaces (“API”), software development kit files, access keys and credentials, software, code (including script libraries), developer platform, and associated documentation we may make available to you now or in the future (collectively, the “Strike API”). You may not access or use the Strike API unless you agree to abide by all of the terms and conditions in these API Terms.
The Strike API is the set of APIs, SDKs, tools, plugins, code, technology, content, and services that enables others, including app developers and website operators, to develop functionality, retrieve data from Strike or provide data to us to facilitate the use of the Strike Services (as defined in Section 5).
By clicking on “Agree” or by accessing or using the Strike API, you agree to be bound by these API Terms, the Acceptable Use Policy, and any additional provisions and conditions provided to you for your use of the Strike API (collectively, the “Policies”).
We may update the API Terms (including any Policies) at any time at our sole discretion. If we do so, we will deliver notice by posting an updated version or otherwise notifying you through other communication(s) deemed appropriate by us. The updated API Terms will be effective at the time they are posted or notice is provided, unless we indicate otherwise. It is important that you review the API Terms regularly for updates because your continued use of the Strike API indicates your agreement to the modifications. We may change or discontinue all or any part of the Strike API at any time and without notice at our sole discretion. You agree that we will not be liable to you or any third party for changes to or discontinuance of the Strike API.
(a) Eligibility. To use the Strike API, you must be at least 18 years of age, capable of forming a binding contract, in compliance with these API Terms (including the Policies), and not prohibited from using the Strike API under applicable law.
(b) Registration. In order to use the Strike API, you agree to comply with our registration and credential requirements, which we may update from time to time. We will provide you with API access keys or other credentials (“Credentials”) to access the Strike API, and you agree you will: (i) only access the Strike API by using these Credentials; (ii) keep Credentials secure; and (iii) not share Credentials with third parties except as expressly permitted in these API Terms. Credentials are the Confidential Information of Strike. We are not responsible for lost or compromised Credentials. You will immediately inform us if you become aware of or suspect your Credentials are compromised. You are responsible for all Strike API activities using your Credentials, whether or not you know about them. Unless otherwise agreed with Strike in writing, you may request and receive only one API access key.
(c) Your Information. You agree to provide accurate registration information as we reasonably request, and to ensure that such information remains up-to-date at all times.
(d) Review. Your use of the Strike API is subject to Strike’s ongoing review and approval. We reserve the right to review, evaluate, and test your Developer Service (defined below) for security, performance, user experience, and compliance with these API Terms and our registration requirements. To facilitate our review, you agree to provide us with requested information. We may update our registration, review, or approval processes at any time.
(a) License. Subject to your compliance with these API Terms and any other agreements between you and Strike, you may only access and use the Strike API to (i) enable your applications, websites, products, or services (“Developer Service”) to connect with and/or utilize Strike’s services, applications, or products (“Strike Services”), and (ii) access information stored in Strike Services and Strike user accounts (“Content”). This limited license applies to all updates, upgrades, and new versions of the Strike API, and all of your use rights in these API Terms are limited, revocable, non-exclusive, non-sublicensable, and non-transferable. You are solely responsible for, and we disclaim all liability for, your Developer Service.
(b) Compliance. You agree to comply with any development, access, and use instructions and requirements contained in the Strike API and any accompanying documentation. Additionally, if we believe that you have violated, or attempted to violate, any of the restrictions listed below, your license to, ability to use, and access to the Strike API may be suspended or terminated, at our sole discretion, with or without notice.
You will not do, or encourage others to do, any of the following:
Use the Strike API in any manner that is not expressly authorized under these API Terms.
Use the Strike API to encourage, promote, or participate in illegal activity, violate third-party rights, including intellectual property rights or privacy rights, or to violate these API Terms or engage in any activity that violates the Acceptable Use Policy.
Copy, rent, lease, sell, sublicense, or otherwise transfer your rights in, or access to, the Strike API or Content to a third party.
Interfere with, disrupt the functionality of, or gain unauthorized access to the Strike API, Content, or Strike Services.
Collect, cache, aggregate, or store data or Content accessed via the Strike API other than for purposes allowed under these API Terms. You may not share such data or Content with third parties in any manner without our prior written authorization.
Use any Content or data collected from your use of Strike API, or any analytic derived from such use, for advertising purposes.
Alter, reproduce, adapt, distribute, display, publish, reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code that is derived from the Strike API.
Use the Strike API if you are located in, or a citizen or resident of any jurisdiction that is embargoed or sanctioned by the United States or where your use of the Strike API would violate any applicable law.
Refuse to comply with additional verification procedures in the event that your Developer Service seeks OAuth permissions to transfer digital currency in an amount greater than predefined limits. Additional verification may include evaluating the purpose of the requested permissions, data security controls, and other criteria at our discretion.
Refuse or restrict access to any Content you collect from visitors, customers, or other types of individuals who are on or may access your Developer Service upon such user’s request for such Content.
Use the Strike API for any Developer Service that constitutes, promotes, or is used in connection with spyware, adware, or any other malicious programs or code.
Use the Strike API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise impacts the stability of our servers or impacts the behavior of other applications using the Strike API.
Display the Strike API or Strike Marks in a manner that could reasonably imply an endorsement, relationship, or affiliation with or sponsorship between you or a third party and Strike, other than as expressly permitted in writing by us.
Attempt to cloak or conceal your identity or the identity of your Developer Service when requesting authorization to the Strike API.
Use the Strike API to collect personal information from or provide services to users under the age of 18 years old or the age of majority in the jurisdiction where the user resides.
Transmit any data related to your integration of the Strike API on a channel that is not secure and encrypted (e.g., HTTPS).
You will provide us with prompt notice of any change to your use of the Strike API, your business activities, or the manner in which you carry on those business activities that may impact the level of risk (including reputational risk) to Strike, the Strike Services, or the Strike API. You will promptly terminate your, or your customer’s, use of the Strike Services through your app if we request it because we believe that you or your customer (i) has violated any applicable terms or policies or (ii) is negatively impacting the Strike API, the Strike Services, or people who use Strike Services.
(c) Agents and Contractors. You are responsible for your agents’ and contractors’ compliance with these API Terms.
(a) Access Limits. Strike may, at any time, with or without notice, and at its sole discretion, establish or update access limits to the Strike API, including rate limits and limitations on calls, pulls, and other uses (“Access Limits”). You will comply with any such Access Limits and any other access restrictions established by Strike, whether in these API Terms, the Strike API, or otherwise. You will not circumvent or attempt to circumvent any Access Limits.
(b) Blocking IDs. In order to help protect the integrity of the Strike API and Strike Services and ensure compliance with these API Terms, we reserve the right, at any time, in our sole discretion, to block access to the Strike API, including by blocking access from certain IP addresses and unique device identifiers.
(a) Strike Marks. We hold intellectual property rights in our trademarks, product names, logos, domain names, and other brand identifiers (“Strike Marks”). Unless otherwise agreed with us in writing, you may not use the Strike Marks. Any and all goodwill arising from your use of the Strike Marks will inure to our sole and exclusive benefit.
(b) Limited License. We hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to include Strike Marks in your Developer Service solely for the limited purpose of identifying the source of the Strike API. You will strictly follow all rules and guidelines provided to you regarding proper use of the Strike Marks. Your use of the Strike Marks: (i) must be in conjunction with the Strike API in your Developer Service; (ii) cannot be to disparage or harm us; and (iii) is subject to prior approval by us in our sole discretion. You may not use any Strike Marks for any purpose not expressly authorized herein.
(c) Developer Marks. If you make your Developer Service available to users, we may (but are not obligated to) use your trademarks, product names, logos, domain names, and other brand identifiers (“Developer Marks”) to identify you as a Developer and to promote your Developer Service, the Strike API, and the Strike Services. You grant Strike a non-exclusive, non-transferable, worldwide, royalty-free, license to use, reproduce, and display the Developer Marks for these purposes.
(a) Your License. You may provide information through the Strike API, and except as provided in these API Terms, we will not acquire any ownership or intellectual property rights that you hold in the information you provide. When you provide information to the Strike API, you grant us a perpetual, worldwide, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, and distribute such information. You represent that, prior to providing information through the Strike API, you have any necessary rights to grant us the foregoing license.
(b) Strike’s Ownership. You acknowledge that all rights, title, and interest to the Strike API, Strike Marks, and Strike Services are owned by Strike or its licensors. Except as provided for in these API Terms, we do not grant you any rights (including any intellectual property rights) in the Strike API, Content, Strike Marks, or Strike Services.
(c) Product Development. We are continually developing additional services and products. Nothing in these API Terms limits our right to develop services, products, or systems similar to or competitive with the Developer Service or any other Developer products or services.
(d) Usage Data. We may collect certain data and information regarding your use of the Strike API (including data about your calls, pulls, or requests) and Content that you access through the Strike API (“Usage Data”). We may use Usage Data as described by our Privacy Notice.
(e) Feedback. We appreciate, and may solicit, feedback, comments, ideas, proposals, and suggestions for improvements to the Strike API and Strike Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction, obligation, or compensation to you.
You are responsible for the following:
(a) Use. You will access and use the Strike API and Content solely as permitted by these API Terms and applicable law, including laws regarding data privacy, data security, and export controls.
(b) Developer Service. You are solely responsible for the Developer Service, your relationship and agreements with users as they relate to the Developer Service, and any support you offer regarding the Developer Service. You will not misrepresent or deceive users regarding the Strike Services, Strike API, or any Content that you may access, store, use, or modify. Strike is not responsible for providing users with support regarding the Developer Service or your use of the Strike API.
(c) Fees. You may not directly or indirectly charge users for use of, or access to, the Strike API. If you charge your customers any fee for use of the Developer Service, you must clearly communicate that such fees are being charged by you and not Strike.
(a) User Content. The Strike API may permit access to our users’ Content. Your access to and use of any such Content through the Strike API must be solely as reasonably necessary to provide the Strike Services via your Developer Service in the manner requested by a user, or otherwise with the express consent of the user. Without limiting the foregoing, you may not share Content with any third party without Strike’s prior written permission, and you may not use any Content: (i) for advertising or marketing purposes; (ii) to build or improve any profiles about any individual; or (iii) to monitor or analyze transaction activity.
(b) Strike Terms. You will not facilitate or encourage any user to violate the Strike Terms of Service or Strike Merchant Terms and Conditions. If Strike receives any data from you or via the Developer Service that relates to you or any user, we may process that data pursuant to our Privacy Notice.
(c) Security. You must protect any Content you receive via the Strike API from unauthorized access, use, or disclosure. You must immediately inform us if you discover or suspect the occurrence of any security incident or data breach potentially affecting the Strike API, Strike Services, or Content, including any unauthorized access, use, or disclosure.
Strike (or a third-party agent subject to obligations of confidentiality), will be entitled to inspect and audit any records or activity related to your access to or use of the Strike API for the purpose of verifying compliance with these API Terms. Strike may exercise its audit right at any time upon reasonable notice. You will provide your full cooperation and assistance with any such audit, including by making available any information, resources, or access we reasonably request to evaluate your compliance. Without limiting the generality of the foregoing, as part of the audit, Strike may request, and you agree to provide, a written report, signed by an authorized representative, listing your then-current deployment of the Strike API. The rights and requirements of this Section will survive for one (1) year following the termination.
You may receive information about us, our affiliates, and the Strike API that is not known to the general public (“Confidential Information”). For the avoidance of doubt, the Strike API, Credentials, and all pricing information are Confidential Information. You agree that (i) all Confidential Information will remain our exclusive property, (ii) you will use Confidential Information only as is reasonably necessary for your use of the Strike API as contemplated by these API Terms, and (iii) you will not otherwise disclose Confidential Information to any other person.
We may offer test or sandbox accounts or environments as part of the Strike API (“Test Accounts”). You may only use Test Accounts for the internal development or testing of your Developer Service. Test Accounts are for development or testing purposes only, and you may not use any Content with Test Accounts. Strike is not responsible for the security or privacy of any data contained in Test Accounts and may access, modify, or delete such data at any time for any reason. You must not provide access to your Test Accounts to anyone else.
THE STRIKE API IS PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” AND STRIKE DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF THESE API TERMS, COURSE OF DEALING, OR USAGE OF TRADE. STRIKE DOES NOT WARRANT THAT THE STRIKE API WILL MEET YOUR REQUIREMENTS OR THAT USE OF SUCH STRIKE API WILL BE ERROR-FREE, VIRUS-FREE, UNINTERRUPTED, WITHOUT DEFECT, OR SECURE. 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.
You will indemnify and defend Strike and its affiliates, and its respective officers, directors, employees, and agents, from and against any third-party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) the Developer Service; (b) your access to or use of the Strike API; (c) your violation of these API Terms; or (d) any negligent, willful, or reckless acts or omissions, dishonesty, or fraud by you or any of your affiliates, customers, or service providers (each, a “Claim”). If Strike seeks indemnification by you, Strike will provide prompt notification in writing of the Claim for which it seeks indemnification or defense. You will assume the defense of such Claim with counsel reasonably satisfactory to Strike; however, Strike reserves the right, at its sole discretion, to assume full control of the defense of a Claim. Without limiting the foregoing, Strike may, at its own expense, participate in the defense and settlement of any Claim with its own counsel, and you may not settle a Claim without Strike’s prior written consent (not to be unreasonably withheld).
(a) DAMAGES WAIVER. NOTWITHSTANDING ANY OTHER SECTION OF THESE API TERMS, NEITHER STRIKE (NOR ITS AFFILIATES) NOR ANY OTHER PARTY INVOLVED IN CREATING, PUBLISHING, OR DELIVERING THE STRIKE API WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, TRADING LOSSES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE API TERMS OR FROM THE USE OF OR INABILITY TO USE THE STRIKE API, WHETHER CLASSIFIED UNDER APPLICABLE LAW AS DIRECT OR INDIRECT DAMAGE, AND WHETHER OR NOT STRIKE OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
(b) DAMAGES CAP. NOTWITHSTANDING AND WITHOUT LIMITING OR MODIFYING ANY OTHER SECTION OF THESE API TERMS , IN NO EVENT WILL STRIKE’S, OR ITS AFFILIATES’, TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE API TERMS OR FROM THE USE OF OR INABILITY TO USE THE STRIKE API EXCEED ONE HUNDRED DOLLARS ($100).
(c) FORM OF ACTION AND FAILURE OF ESSENTIAL PURPOSE. THE WAIVERS AND LIMITATIONS IN THIS SECTION APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY IN THESE API TERMS FAILS OF ITS ESSENTIAL PURPOSE.
(a) By Developer. You may terminate these API Terms by ceasing any and all use of the Strike API and Content.
(b) By Strike. We may terminate or suspend your access to the Strike API (in whole or in part) for any reason or no reason by providing you notice.
(c) Effect of Termination. Upon termination or suspension: (i) any and all rights and licenses granted to you under these API Terms will terminate; (ii) you will cease any use of the Strike API; (iii) you will stop collecting or using any Content; and (iv) you will delete all Content in your possession. Strike will have no liability to you or any third party for the termination or suspension of these API Terms or your access to the Strike API. Sections 5 (Your Use of the Strike API), 7 (Use of Marks), 8 (Ownership), 10 (Data), 11 (Audit), 12 (Confidentiality), 15 (Indemnification), 16 (Limitations of Liability), 18 (Arbitration Agreement), and 19 (General) will survive termination.
(a) Contact Strike. If you have feedback, or general questions, contact Strike Support via email at email@example.com.
(b) Applicability of Arbitration Agreement. Subject to the terms of this Section, you and Strike agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Strike API, any communications you receive, or the API Terms and prior versions of the API Terms, including claims and disputes that arose between us before the effective date of these API Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Strike may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you and Strike may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Section, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of the API Terms as well as claims that may arise after the termination of these API Terms.
(c) Pre-Arbitration Dispute Resolution and Notification. The parties agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost, and mutually beneficial outcome. The parties therefore agree that, before either party demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in good-faith to informally resolve any Dispute covered by this Arbitration Agreement. Multiple individuals initiating Disputes cannot participate in the same informal telephonic dispute resolution conference. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of their intent to initiate an informal dispute resolution conference, which shall occur within sixty (60) days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Strike that you intend to initiate an informal dispute resolution conference, write to firstname.lastname@example.org, providing your name, the telephone number(s) associated with your Credentials (if any), the email address(es) associated with your Credentials, and a description of your Dispute. Engaging in an informal dispute resolution conference is a condition precedent that must be fulfilled before commencing arbitration, and the Arbitrator shall dismiss any arbitration demand filed before completion of an informal dispute resolution conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
(d) Waiver of Jury Trial. YOU AND STRIKE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Strike are instead electing that all Disputes shall be resolved by arbitration under this Section, except as specified in the subsection entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
(e) Waiver of Class and Other Non-Individualized Relief. YOU AND STRIKE AGREE THAT, EXCEPT AS SPECIFIED IN SUBSECTION (j), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE DEVELOPER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER DEVELOPER. Subject to this Section, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party's individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under the subsection (j) entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Section, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Strike agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Strike from participating in a class-wide settlement of claims.
(f) Rules and Forum. These API Terms evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Section and any arbitration proceedings. If the informal dispute resolution process required by subsection (c) above does not resolve satisfactorily, you and Strike agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Commercial Arbitration Rules (the "AAA Rules") then in effect, except as modified by this subsection. The AAA Rules are currently available at https://www.adr.org/sites/default/files/CommercialRules_Web-Final.pdf.
In order to initiate arbitration following the conclusion of the informal dispute resolution process required by subsection (c), a party who wishes to initiate arbitration must provide the other party with a request for arbitration (“Request”). If you initiate the arbitration, you must provide us with a copy of your Request by email at email@example.com or through Strike’s registered agent for service of process. The Request must include: (1) the name, telephone number, mailing address, email address of the party seeking arbitration, and the email addresses associated with the applicable Credentials; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought, including an accurate, good-faith calculation of the amount in controversy in United States Dollars; and (4) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Strike otherwise agree, or the Batch Arbitration process discussed in subsection (j) is triggered, the arbitration will be conducted in San Francisco, California, at another mutually agreeable location or, if both parties agree, by telephone or videoconference. Disputes involving claims, counterclaims, or requests for relief under $25,000, not inclusive of attorneys’ fees and interest, will be conducted solely on the basis of documents you and Strike submit to the arbitrator. If your claim exceeds $25,000, your right to a hearing will be determined by AAA Rules. Subject to AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. In any case, you and Strike agree that we will not request more than three depositions per side in each arbitration or Batch Arbitration proceeding. If AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
You and Strike agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
(g) Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the United States and will be selected by the parties from AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) business days of delivery of the Request, then AAA will appoint the arbitrator in accordance with AAA Rules, provided that if the Batch Arbitration process under subsection (j) is triggered, AAA will appoint the arbitrator for each batch.
(h) Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of this Section, including the enforceability, revocability, scope, or validity of this Section or any portion of this Section, except for the following: (1) all Disputes arising out of or relating to the Section entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the Section entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such Section entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in the subsection entitled “Batch Arbitration,” all Disputes about payment of arbitration fees shall be decided only by a court of competent jurisdiction; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction; and (4) all Disputes about which version of this Sectionapplies shall be decided only by a court of competent jurisdiction. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in the subsection entitled “Batch Arbitration.” The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction. In any award of damages, the arbitrator shall abide by the “Limitation of Liability” section of these API Terms.
(i) Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Strike needs to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the pre-arbitration dispute resolution process described in subsection (c) above, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
(j) Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Strike agree that in the event that there are one hundred (100) or more individual Requests of a substantially similar nature filed against Strike by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), AAA shall (1) administer the arbitration demands in batches of one hundred (100) Requests per batch (plus, to the extent there are less than one hundred (100) Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise AAA, and AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Strike.
You and Strike agree to cooperate in good faith with AAA to implement Batch Arbitration including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this subsection.
(k) Modification. Notwithstanding any provision in these API Terms to the contrary, we agree that if Strike makes any future material change to this Section, it will notify you. Your continued use of the Strike API following the posting of changes to this Section constitutes your acceptance of any such changes.
(a) Governing Law. These API Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of Delaware, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 18, the exclusive jurisdiction for all disputes that you and Strike are not required to arbitrate will be the state and federal courts located in New Castle County, Delaware, and you and Strike each waive any objection to jurisdiction and venue in such courts.
(b) Assignment. You may not assign or transfer these API Terms (or any rights or obligations under these API Terms), by operation of law or otherwise, without Strike’s prior written consent. Any attempt by you to assign or transfer these API Terms, without such consent, will be null. Strike may freely assign or transfer these API Terms without restriction. Subject to the foregoing, these API Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
(c) Notices. Any notices or other communications provided by Strike under these API Terms, will be given by email at the address provided by you, or by such other method deemed appropriate by us.
(d) Open Source Software. Some of the software packages, libraries, or components required by or included in the Strike API are or may become licensed under an open source software license (“Open Source Components”). To the limited extent that the Open Source Component license expressly supersedes these API Terms, your use, reproduction and distribution of any such Open Source Component is governed by the terms of the applicable software license.
(e) Waiver of Rights. Failure to enforce any right or provision of these API Terms is not a waiver of such right or provision, and all waivers must be in writing. Except as expressly set forth in these API Terms, the exercise by either party of any of its remedies under these API Terms will be without prejudice to its other remedies under these API Terms or otherwise.
(f) Downtime and Maintenance. The Strike API may be periodically unavailable during scheduled or unscheduled downtime. Strike is not liable for any inconvenience or losses as a result of such downtime or maintenance.
(g) Force Majeure. Neither party will be liable for any loss or damage or for any delay or failure in performance due to acts beyond the control of such party whether or not such acts could reasonably be anticipated (including acts of God, legislative, judicial or regulatory acts of any provincial or the federal government, court or regulatory authority, acts of any of the parties’ subcontractors or any third-party providers of goods or services to the parties, labor disruptions, blackouts, embargoes).
(h) Translations. These API Terms are written in English (U.S.). Any translated version is provided solely for your convenience. To the extent any translated version of our API Terms conflicts with the English version, the English version controls.
(i) Entire Agreement. These API Terms incorporate the applicable Policies by reference and represent the entire agreement between the parties with respect to its subject matter and supersedes any previous or contemporaneous oral or written agreements regarding the Strike API. We will not be bound by, and specifically object to, any term, condition, or other provision that is different from or in addition to the provisions of these API Terms (whether or not it would materially alter these API Terms). In the event that any term, condition, or other provision (i) submitted by you in any order, receipt, acceptance, confirmation, correspondence, or other document, (ii) related to any online registration, purchase order, or other questionnaire, or (iii) related to any invoicing process that you submit or require us to complete is inconsistent with these API Terms, these API Terms will control.
(j) Interpretation. For purposes of these API Terms, (i) the words “include,” “includes”, and "including" are deemed to be followed by the words "without limitation"; (ii) the word “or” is not exclusive; (iii) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these API Terms as a whole; (iv) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (v) words denoting any gender include all genders. Unless the context otherwise requires, references in these API Terms: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, these API Terms; (y) to an agreement, instrument or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties drafted API Terms without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.