APIs Terms of Use

By using the Brightkite application programming interfaces  (the "Brightkite APIs"), a service of Brightkite Inc. (the "Company," "we" or "us"), you are agreeing to be bound by the following terms and conditions ("Terms of Use" or "Terms") and the Site Terms (as defined below), whether or not you are a registered member of Brightkite.com (the "Site").  The general terms of use for the Site located at http://brightkite.com/terms_of_service (the "Site Terms") are incorporated herein by reference.

We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use or the Site Terms at any time without further notice. Your continued use of the Site or the Brightkite APIs after any such changes constitutes your acceptance of the new Terms of Use or Site Terms, as applicable. If you do not agree to abide by the current or any future Terms of Use or Site Terms, do not use or access (or continue to use or access) the Brightkite APIs.

PLEASE READ THESE TERMS OF USE AND THE SITE TERMS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.

License; Ownership

The Brightkite APIs are owned by the Company. The Company grants you a non-exclusive license to use the Brightkite APIs subject to the terms of these Terms of Use. Your license to the Brightkite APIs under these Terms will continue until it is terminated by either party. You may terminate the license by discontinuing use of the Brightkite APIs. We may terminate the license at any time for any reason. Your rights to use the Brightkite APIs will terminate automatically if (i) you violate any of these Terms, (ii) we publicly post a written notice of termination on the Site, (iii) we send a written notice of termination to you, or (iv) we disable your access to the Brightkite APIs. We reserve the right to refuse access to the Brightkite APIs in our sole discretion.

The Brightkite APIs may be protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights and laws of the U.S. and other countries. The Company's rights apply to the Brightkite APIs and all output and executables of the Brightkite APIs, excluding any software components developed by you which do not themselves incorporate the Brightkite APIs or any output or executables of the Brightkite APIs. You agree to abide by these Terms, all applicable proprietary rights laws and other laws that apply to the Brightkite APIs, and all applicable copyright notices or restrictions. The Company owns all rights, title, and interest in and to the Brightkite APIs. These Terms grant you no right, title, or interest in any intellectual property owned or licensed by the Company, including (but not limited to) the Brightkite APIs and the Company’s trademarks. All rights not expressly granted to you are reserved by the Company.

Appropriate Conduct and Prohibited Uses

The Brightkite APIs may be used only for services that are generally accessible to consumers without charge. In addition, except where you have been specifically licensed by the Company to do so, you may not use the Brightkite APIs with any commercial products, systems, or applications. Moreover, you may not sell any Brightkite  API data, or any modifications or derivative works thereof, without our prior written consent.

You agree that you are responsible for your own conduct and content while using the Brightkite APIs and for any consequences thereof. You agree to use the Brightkite APIs only for purposes that are legal, proper and in accordance with these Terms of Service and any applicable policies or guidelines. By way of example, and not as a limitation, you agree that when using the Brightkite APIs, you will not:

• defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
• upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful content;
• upload, post, email or transmit or otherwise make available any content that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party;
• upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, these Terms or any applicable policies or guidelines;
• download any file posted by another that you know, or reasonably should know, cannot be legally distributed in such manner;
• impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
• restrict or inhibit any other user from using and enjoying the services provided on the Site;
• use the Site services for any illegal or unauthorized purpose;
• remove any copyright, trademark or other proprietary rights notices contained in or on the Site;
• interfere with or disrupt the Site services or servers or networks connected to the Site services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site services;
• use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Site services or collect information about users for any unauthorized purpose;
• submit content that falsely expresses or implies that such content is sponsored or endorsed by the Company;
• create user accounts by automated means or under false or fraudulent pretenses, or obtain or attempt to obtain multiple keys for the Site services;
• promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or
• transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.

Brighktite API Requests

You may make up to 100 Brightkite API requests per hour. If you exceed this value within a 24-hour period, the Brightkite APIs may stop working for you temporarily. If you attempt to circumvent this limit, your access to the Brightkite APIs may be blocked immediately. If you continue to abuse this limit, your access to the Brightkite APIs may be blocked permanently.

Fees and Payments

We are committed to free and open access to the Brightkite APIs for commercial and non-commercial purposes. However, providing the Brightkite APIs does have real costs for us. For uses of Brightkite APIs over a certain rate or for certain types of commercial applications, we reserve the right to charge fees for future use of or access to the Brightkite APIs.

Advertising

The Brightkite APIs does not include advertising. However, we reserve the right to include advertising in the feeds and data provided to you through the Brightkite APIs, but will provide you with thirty (30) days notice prior to the commencement of advertising. Such notice may be provided on relevant Company websites, including but not limited to the Brightkite API Group and the Brightkite Blog (or such successor URLs that the Company may designate from time to time). After such time that we begin to include advertising, your display of any of our data must include a display of any related advertising.

Support

We may elect to provide you with support or modifications for the Brightkite APIs (collectively, "Support"), in our sole discretion, and may terminate such Support at any time without notice to you. We may change, suspend, or discontinue any aspect of the Brightkite APIs at any time, including the availability of any Brightkite APIs. We may also impose limits on certain features and services or restrict your access to parts or all of the Brightkite APIs or the Site without notice or liability.

Disclaimer of Any Warranty

SOME OF THE BRIGHTKITE APIS MAY BE EXPERIMENTAL AND NOT TESTED IN ANY MANNER. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY BRIGHTKITE APIS ARE FREE OF INACCURACIES, ERRORS, BUGS, OR INTERRUPTIONS, OR ARE RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID.

THE BRIGHTKITE  APIS ARE PROVIDED "AS IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND AND THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABLILTIY, SECURITY, TITLE AND/OR NON-INFRINGEMENT.

YOUR USE OF THE BRIGHTKITE APIS IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF ANY BRIGHTKITE APIS INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA.

Limitation of Liability

THE COMPANY SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE BRIGHTKITE APIS, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE), OR ANY OTHER PECUNIARY LOSS, WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE COMPANY BE LIABLE TO YOU FOR ANY AMOUNT.

Exclusions and Limitations

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Release and Waiver

To the maximum extent permitted by applicable law, you hereby release and waive all claims against the Company, and its subsidiaries, affiliates, managers, members, employees, officers, agents, licensors, co-branders or other partners, from any and all liability for claims, damages (actual and/or consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising from or in any way related to your use of the Brightkite APIs. If you are a California resident, you waive your rights under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." You understand that any fact relating to any matter covered by this release may be found to be other than now believed to be true and you accept and assume the risk of such possible differences in fact. In addition, you expressly waive and relinquish any and all rights and benefits which you may have under any other state or federal statute or common law principle of similar effect, to the fullest extent permitted by law.

Hold Harmless and Indemnity

To the maximum extent permitted by applicable law, you agree to hold harmless and indemnify the Company, and its subsidiaries, affiliates, managers, members, employees, officers, agents, licensors, co-branders or other partners, from and against any third party claim arising from or in any way related to your use of the Brightkite APIs, your use of the Site, your violation of these Terms or the Site Terms, or your violation of any rights of another, including any liability or expense arising from any claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. The Company shall use good faith efforts to provide you with written notice of such claim, suit or action.

General Terms

1. Relationship of the Parties. Notwithstanding any provision hereof, for all purposes of these Terms of Use, you and the Company shall be and act independently and not as partner, joint venturer, agent, employee or employer of the other. You shall not have any authority to assume or create any obligation for or on behalf of the Company , express or implied, and you shall not attempt to bind the Company  to any contract.
2. Invalidity of Specific Terms. If any provision of the Terms of Use is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and the other provisions of such documents remain in full force and effect.
3. Location of Lawsuit and Choice of Law. These Terms of Use and the relationship between you and the Company shall be governed by the laws of the State of Colorado without regard to its conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Denver, Colorado.
4. No Waiver of Rights. The Company’s failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision.
5. Miscellaneous. The section headings and subheadings contained in these Terms of Use are included for convenience only, and shall not limit or otherwise affect the terms of the Terms of Use. Any construction or interpretation to be made of these Terms of Use shall not be construed against the drafter. These Terms of Use and the Site Terms constitute the entire agreement between you and the Company  with respect to the subject matter hereof. To the extent the Site Terms and the Terms of Use conflict, the Site Terms shall control.