These API Terms apply to the use of the Toon API (as defined below). Please read these API Terms carefully so that you know what your rights and obligations are when you use the Toon API as a developer. By creating an account and accepting these API Terms, you enter into a binding agreement with Quby B.V. regarding the use of the Toon API.
Article 1. Definitions
1.1. In these API Terms, capitalized words shall have the meanings specified as referred to below:
Account: the personal, digital environment of the Developer which can be accessed after entering Login Details and in which secured environment the Developer can use the Toon API in order to develop an Application;
Application: the software (including source and object code) developed by the Developer in its Account for the purpose of integrating this software with the Toon Thermostat by means of the Toon API;
API terms: these general terms and conditions for use of the Toon API;
Confidential Information: any confidential, proprietary, business secret or technology information relating to the business of Toon, or to the organization, implementation or operation of its business, products, as well as the Toon Thermostat including related Data, in any form, including written and electronic documents or otherwise reasonably to be understood as confidential (regardless of its form);
Data: any and all data originating from the Toon Thermostat and which are called, processed, stored, published and/or reproduced by the Developer, for instance in the course of developing, making available and using the Application;
Developer: the developer of an Application that has created an Account and has accepted the API Terms regarding the use of the Toon API;
Intellectual property rights: all the intellectual property rights including but not limited to rights such as copyrights, database rights, domain names, trademark rights, patents, model rights, trade name rights and neighbouring rights as well as the rights to know-how, as valid anywhere in the world;
Login Details: the credentials provided to Developer after acceptance of the API Terms by the Developer which can be used by the Developer to access its Account and gain access to the Toon API;
Online documentation: has the meaning as given thereto in Article 2.1;
Party/Parties: Developer and/or Toon;
Product Key: the access information and permission to use the Toon API;
Toon: the limited liability company Quby B.V., having its statutory seat in Amsterdam and its principle place of business at Joan Muyskenweg 22, 1096 CJ, , registered with the Dutch Chamber of Commerce under file number 50856286;
Toon Thermostat: the interactive Toon thermostat, as developed by Toon, with which the Developer can interact by means of the Toon API after receiving a Product Key;
Toon API: the application programming interface of Toon and/or its licensors which is made available to Developer under the API Terms, including all accompanying documentation
User: Toon’s end user that makes use of the Toon Thermostat and has access to the Application after a Product Key is obtained by Developer.
Article 2. Scope & Applicability
2.1. These API Terms apply to the Developer’s use of the Toon API and the Account. Stipulations varying from these API Terms will be valid only if they have been explicitly agreed in writing. In addition to observing the provisions of these API Terms, the Developer shall comply with specifications and obligations in respect of the Toon API, such as Toon’s Privacy Principles, Toon’s Branding Guidelines, the Technical Documents and Quality Assurance guidelines (together hereinafter referred to as “Online Documentation”) which guidelines Toon will distribute from time to time on developer.toon.eu.
2.2. Toon specifically rejects the applicability of any general conditions of the Developer.
2.3. Toon will at all times be entitled to amend or supplement these API Terms and the Online Documentation. The most recent version of the API Terms and Online documentation will be available on developer.toon.eu. By continuing to use the Toon API after an amendment or supplement to these API Terms, the Developer unconditionally accepts the amended or supplemented API Terms. If the Developer does not accept the amended or supplemented API Terms, the Developer shall cease the use and distribution of the Toon API.
Article 3. Right of use
3.1. In order to gain access to the Toon API, develop an Application and request a Product Key, the Developer has to create an Account. The Developer warrants that all information provided during the creation of an Account is up-to-date, correct and complete. The Developer is not entitled to create an Account on behalf of any third party.
3.2. The Developer is responsible for maintaining secrecy with regard to its Login Details. As soon as the Developer knows or has reason to suspect that its Login Details have come into the hands of unauthorized persons, the Developer shall inform Toon thereof without delay, without prejudice to its own obligation to immediately take effective action, such as modifying its Login Details.
3.3. The Developer is at all times responsible and liable for the use of the Toon API through its Account and is not allowed to share its Login Details or API key with any third party. The Developer is solely responsible for any access to and use of the Account and the Toon API by means of Developer’s Login Details and indemnifies Toon from damages and costs arising from and/or related to the access to or the use of the Toon API by third parties through the Developer’s Account.
3.4. Toon may at all times (i) make functional, procedural or technical changes or improvements to the Account and the Toon API, and (ii) (temporarily or permanently) take out of service, restrict the use of or terminate the Developer’s Account, at its sole discretion.
3.5. The Developer may not sell, lease, sublicense, dispose of, surrender or transfer the Toon API, Login Details, Data or other Confidential Information to third parties in any form whatsoever, make any of the aforesaid available to third parties in any form whatsoever or grant third parties access to any of the aforesaid, whether or not remotely unless specifically provided in these API Terms.
3.6. Under the conditions laid down in these API Terms, Toon grants the Developer a free, limitative, non-exclusive, non-transferable, and non-licensable right to create an Account and use the TOON API with the purpose of developing Applications for commercial and non-commercial purposes. The Developer accepts said right of use, all of the foregoing in accordance with the provisions of these API Terms.
3.7. The Developer is only entitled to publicly offer an Application after receiving a Product Key by Toon for such Application, which Product Key shall be requested by Developer through its Account and in accordance with the specifications listed thereon. Toon reserves its right to, at its sole discretion, i) refuse the grant a Product Key, ii) request the Developer to change its Application in order to be entitled to receive for a Product Key and/or iii) to attach further conditions to the grant of such Product Key, including financial conditions and/or conditions with regard to the amount of Users that are able to use the Application.
3.8. A Product Key is granted for the use of the Application by a maximum amount of 10,000 (ten thousand) End Users. If this maximum amount of End Users is (nearly) reached, Parties shall discuss the possible exceedance of this amount of End Users, which exceedance may be subject to additional (financial) conditions.
3.9. The grant of a Product Key is at all times subject to Developer’s compliance with the Online Documentation and Toon reserves its right to revoke a Product Key in case of any non-compliance of the Developer with (a part of ) the Online Documentation. Toon reserves its right to attach additional conditions to validity of a Product Key after the grant thereof.
3.10. On Toon’s first request, the Developer shall provide Toon with any and all information regarding (the development of) its Application which Toon reasonably needs to verify whether i) the Developer is acting in accordance with these API Terms and the Online Documentation and ii) the Application is developed in conformity with the specifications and scope of the granted or requested Product Key. For this purpose, Toon may request – and Developer shall provide – a copy of the source code of the Application, as well as access to the Developer’s hardware and other systems. Toon reserves its right to terminate or suspend the license laid down in Article 3.6 if Toon determines that Developer does not comply with this Article.
Article 4. Specific Use of the Toon API
4.1. Subject to these API Terms, the Developer is entitled to use the Toon API for the sole purpose of i) developing an Application within its Account and ii) connecting the developed Application to the Toon Thermostat, in accordance with the specifications of the provided Product Key.
4.2. Before using the Toon API, Developer is required to consult the Online Documentation. Developer shall not develop any Application in deviation of these guidelines. In particular, the Developer shall implement sufficient security measures in the Application and submit its Applications to sufficient testing before making available the Application.
4.3. The Application and, as the case may be, the Developer may not:
a. use the Data in any other way than to enhance the performance of the Application;
b. analyse, except for the purpose described in Article 4.3 a., or change the Data or provide the Data to any third party;
c. substantially have the same functions and/or look and feel as the basic thermostat functionality of the Toon Thermostat, to be determined by Toon;
d. conceal the Developer's identity or the actual purpose of the Application;
e. create the impression that there is a commercial or other connection between Toon and the Developer;
f. attempt to interfere with, intercept, disrupt, exploit, filter, or disable any features of the Toon API or the Toon Termostat, including the Data;
g. contain or distribute any unlawful, inappropriate or harmful content;
h. contain or distribute any viruses, Trojan horses or other malicious code;
i. violate these API Terms, the Online Documentation, the applicable laws or regulations or be unlawful in any other respect, whether or not vis-a-vis third parties; or
j. prejudice Toon’s or its affiliates’ interests or damage its good name.
4.4. Developer acknowledges and accepts that it shall update its Application in case Toon has updated or modified the Toon API or the Online Documentation. Toon reserves its right to (temporarily) suspend the Agreement and remove the Application from the Toon Thermostat in case the Developer does not timely and fully comply with the obligation laid down in this Article.
4.5 When developer notices or discovers a security bug or issue, the developer must notify Toon by sending a short description to firstname.lastname@example.org.
Article 5. Intellectual Property Rights
5.1. The Intellectual Property Rights in respect of the Toon API, the Toon Thermostat and all Data are and will remain vested in Toon or its licensor(s). None of the provisions of these API Terms is intended to transfer any of the aforesaid Intellectual Property Rights to the Developer. The Developer will be solely entitled to the limitative use of the Intellectual Property Rights as provided in Article 3 and Article 4 of these API Terms.
5.2. The Developer shall refrain from performing any act, or instructing a third party to perform any act, which infringes on, prejudices or jeopardises the Intellectual Property Rights of Toon, its licensors and/or other third parties, such as end customers.
5.3. Without prejudice to the provisions of articles 5.1 and 5.2, the Developer will retain all Intellectual Property Rights in respect of the Applications, provided that said Applications do not contain the Toon API or any part of the Toon API or Data.
5.4. The Developer is only entitled to use Toon’s name, registered trademarks and/or other references to Toon’s Intellectual Property Rights in conformity with Toon’s branding guidelines, which are included in the Online Documentation.
5.5. Regardless of whether Toon has granted a Product Key to Developer, Toon reserves its right to develop, distribute, modify and use any software or data, also if such software is or may be similar or identical to the Developer’s (idea regarding an) Application, at all times with due observance of the Developer’s Intellectual Property Rights. Toon is at all times entitled to perform such acts without incurring any obligations or liability vis-à-vis the Developer.
5.6. The Developer may not remove or alter any proprietary notices or marks on the Toon API, the Account or the Data.
5.7. Developer grants to Toon and its subsidiaries the worldwide, royalty-free right to use the Application and related materials for marketing or demonstration purposes.
Article 6: Data and Privacy
6.2. Prior to processing any data subject’s personal data, the Developer shall at all times obtain the data subject’s consent to process its personal data and inform these data subjects regarding the processing of the personal data. The Developer shall delete any data subject’s personal data upon first request of Toon or the data subject.
6.3. Toon is in no way responsible with regard to any processing of personal data by the Developer.
6.4. If and in as far as the Developer has access to and uses Data, the Developer warrants that it shall only use such Data in as far as such is necessary for the development of the Application and that it shall never export the Data from the Application.
Article 7. Price and Payment
7.1. Toon may charge a fee for the grant of a Product Key or the use of the Application by Toon’s Users. The fees that are charged by Toon in connection to the API Terms, as well as the way such fees are invoiced and other payment terms are explained in the pricing principles.
Article 8. Confidentiality
8.1. The Developer hereby acknowledges that, as a result of the use of the Toon API, the Developer may obtain Confidential Information, which includes the Data. The Developer will maintain secrecy with regard to any Confidential Information and keep such information confidential.
8.2. The Developer shall take the appropriate precautions to ensure that Confidential Information is only communicated to those persons who are directly involved with regard to the Application on a need to know basis and who are bound by confidentiality obligations similar to those set forth in these API Terms. The Developer will impose this obligation of confidentiality also on its employees and third parties it hired for the performance of Developer’s obligations hereunder.
8.3. Upon first request of Toon or termination of the Agreement, Developer shall delete or return the Confidential Information, at the sole discretion of Toon.
8.4. The Developer is not allowed to remove, make illegible, hide or change notifications with regard to the confidential nature of the information.
8.5. The Developer is not entitled to make any statement that suggests partnership with, sponsorship by or endorsement by Toon without Toon's prior written approval.
Article 9. Warranties and indemnifications
9.1. Toon provides the Account, the Toon API and the Data on an 'as is' basis. Toon therefore expressly disclaims any and all explicit and implied guarantees, undertakings and warranties of any nature, including but not limited to guarantees, undertakings and warranties with respect to the quality, security, lawfulness, integrity and accuracy of the Toon Thermostat, the Toon API, the Data, the Account and any (other) services rendered in connection to the Agreement.
9.2. Toon does not warrant that the Toon Thermostat, the Application and/or the Toon API will be accessible at all times and without interruptions or failures. Failures regarding the availability of the Toon Thermostat, the Application and/or the Toon API may be caused in part, but not exclusively, by failures in the internet or telephone connection or by viruses or errors/defects. Toon is not liable for damages ensuing from or caused by the unavailability of the Toon Thermostat, the Application or the Toon API.
9.3. The Developer warrants that:
a. it will incorporate adequate and sufficient security measures in the Application in order to ensure that the Data as processed and/or used by the Application will not be available to any third party;
b. the Application does not violate article 4.3 or causes any User to perform any of the acts mentioned in that article;
c. each Application at any rate contains the following easily legible statement in the help text or other .txt file: 'This application uses the Toon API but has not been developed, certified or otherwise approved on behalf of or on the instructions of Toon'; and
d. it frequently takes note of Toon’s terms and policies (i) to ensure that he is using the most recent stable version of the Toon API and (ii) to find out about any amendments to such API Terms and other policies.
9.4. The Developer indemnifies Toon against any and all claims by third parties on whatever basis in respect of compensation for damage, costs or interest, relating to or arising from (a) any act or omission by the Developer, in connection with his use of the Data, the Toon API or the Application; (b) the Developer’s use of the Data, the Toon API or the Application other than as expressly allowed by these API Terms; (c) the Developer’s breach or alleged breach of any statutory provision or provisions laid down in under these API Terms; or (d) its Application. The Developer will assume control of the defence and settlement of any claim subject to indemnification. Toon may, however, at any time elect to take over control of the defence and settlement of any such claim. In any event, the Developer will not settle any such claim without Toon’s prior written consent.
Article 10. Liability
10.1. The liability of Toon, whether based upon breach of the Agreement or tort, is limited to compensating direct damages, up to at most the amount of EUR 10,000.- as total and aggregate liability for direct damages..
10.2. "Direct damage" in the sense of Article 10.1 shall solely mean:
a. reasonable expenses which the Developer would have to incur to make Toon’s performance conform to the Agreement. This alternative damage shall not be compensated, however, if the Agreement is rescinded;
b. reasonable expenses incurred to determine the cause and scope of the damage, insofar as the determination relates to direct damage within the meaning of these API Terms; or
c. reasonable expenses incurred to prevent or mitigate damage, insofar as the Developer demonstrates that these expenses resulted in mitigation of direct damage within the meaning of these API Terms.
10.3. Toon’s liability for any other damages than included in Article 10.2, including but not limited to consequential damage, consequential loss, lost profits, lost savings, loss of goodwill, damage through business interruptions, damage ensuing from claims by the Developer’s customers, mutilation or loss of data, damage relating to the use of objects, materials or software of third parties, and damage relating to engagement of suppliers is fully excluded.
10.4. The limitation of liability as mentioned in the preceding paragraphs of this Article 10 shall not apply if and insofar as the damage or injury is the result of willful intent or gross negligence by Toon or its board of directors.
10.5. The Developer is fully responsible and liable for the provision of support in respect of its Application to Users. Toon shall not provide any support in respect of the Application, unless Parties have explicitly agreed otherwise.
10.6. If and in as far as the Toon API and/or the Data consists of any software of which the Intellectual Property Rights are not vested in Toon (“Third Party Software”), such Third Party Software may be accompanied by its own licensing terms, with which the Developer shall at all times comply. All Third Party Software is supplied by the respective vendor or supplier, and Toon shall have no responsibility with regard to the selection, performance or use of these vendors or products. All understandings, agreements, or warranties with regard to such Third Party Software, if any, shall take place directly between the vendors and the prospective Users.
Article 11. Termination
11.1. The Agreement will be enforceable until it is terminated by either Party in accordance with the provisions of this article.
11.2. The Developer will be entitled to terminate the Agreement at any time by ceasing the use of the Toon API and terminating its Account.
11.3. Toon may immediately (temporarily or permanently) suspend the Developer’s access to its Account, the Toon API or any Data at any time, and without notice to the Developer if the Developer breaches these API Terms or otherwise engages in activities that Toon reasonably determines are likely to cause liability to Toon.
11.4. In addition, Toon is entitled to terminate or suspend the Agreement with immediate effect without stating reasons, in all cases without becoming liable for any costs, expenses, or damages as a result of its termination of the Agreement.
11.5. Upon termination, Developer’s Account shall be terminated and the Developer shall cease and desist from using the Toon API and the Data, which shall be permanently removed by the Developer from its computer and/or other data carriers. Toon reserves its right to remove the Application from the Toon Thermostat in such cases.
Article 12. Miscellaneous
12.1. These API Terms and the Agreement are governed by and construed in accordance with the laws of The Netherlands.
12.2. All disputes resulting from or arising out of these API Terms or the Agreement shall exclusively be submitted to the competent court in Amsterdam, The Netherlands.
12.3. Verbal communications, undertakings or arrangements have no legal force unless they have been confirmed in writing.
12.4. Toon is allowed to assign any rights and obligations resulting from these API Terms and the Agreement to third parties and will inform the Developer of this. If the Developer does not accept the assignments of obligations to a third party, the Developer may terminate the Agreement.
12.5. If these API Terms are or become party invalid, the Developer as well as Toon continues to be bound to the remaining part. Toon will replace the invalid part by clauses which will indeed be valid and of which the legal consequences – considering the contents and purpose of these API Terms– correspond as much as possible with those of the invalid part.