API DOCUMENTATION -- USER LICENSE AGREEMENT
Kitu Systems, Inc. (“KITU”) is providing you a license to download and use KITU’s API Documentation and related electronic materials (the “API Documentation”) subject to the terms of this API Documentation -- User License Agreement (the “Agreement”).
IMPORTANT – PLEASE READ CAREFULLY
THIS IS A LEGAL AGREEMENT BETWEEN YOU (AS THE AUTHORIZED REPRESENTATIVE OF THE ENTITY ENTERING INTO THIS AGREEMENT WITH KITU) AND KITU FOR THE API DOCUMENTATION. BY CHECKING THE APPROPRIATE BOX ON THE DOWNLOAD SCREEN ASSOCIATED WITH THE API DOCUMENTATION, AND DOWNLOADING THE API DOCUMENTATION, YOU REPRESENT AND WARRANT THAT YOU: (I) HAVE READ THIS AGREEMENT AND UNDERSTAND IT; AND, (II) ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF AND BIND THE ENTITY THAT IS LICENSING THE API DOCUMENTATION TO THE TERMS OF THIS AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS, OR YOU ARE NOT AUTHORIZED TO BIND YOUR ENTITY TO THE TERMS OF THIS AGREEMENT, THEN KITU IS UNWILLING TO GRANT YOU THIS LICENSE AND YOU SHOULD NOT CHECK THE APPROPRIATE BOX ON THE DOWNLOAD SCREEN NOR ARE YOU PERMITTED TO DOWNLOAD THE API DOCUMENTATION. FOR CLARITY, ANY REFERENCE HEREIN USING WORDS SUCH AS “YOU” AND “YOUR” SHALL REFER, COLLECTIVELY, TO YOU AND THE BUSINESS ENTITY YOU REPRESENT HEREUNDER.
The API Documentation is licensed, not sold, to you. KITU hereby grants you a limited, personal, nonexclusive and nontransferable license (without the right to sublicense), during the term of this Agreement, to download and use the API Documentation solely as authorized hereunder. You agree that the API Documentation belongs solely and exclusively to KITU. You agree to keep confidential and use your best efforts to prevent and protect the contents of the API Documentation from unauthorized disclosure or use. KITU reserves all rights, title and interest to the API Documentation not expressly granted to you under this Agreement.
SCOPE OF LICENSE
The API Documentation is licensed solely for your internal business use. This license gives you the right to download the API Documentation to one or more computers that you own, or which are under your control. If the API Documentation is downloaded to a network server or other system that allows shared access to the API Documentation, you agree to limit use of the API Documentation to your employees or independent contractors who are obligated to abide by the terms of this Agreement. You shall be liable to KITU for the activities of anyone to whom you provide access to the API Documentation. In addition, you agree to provide technical or procedural methods to prevent use of the API Documentation by individuals not specifically licensed to use the API Documentation pursuant to this Agreement. KITU is not required to provide any maintenance or support services with respect to the API Documentation under this Agreement. You may make a reasonable number of copies of the API Documentation so long as KITU’s copyright notice is included on each such copy.
You are not permitted, nor can you allow any third party, to modify, translate, or create derivative works based on the API Documentation, or any portion thereof. You are not permitted, nor can you allow any third party, to copy the API Documentation except as specifically provided by this Agreement. Without limiting the generality of the foregoing, YOU ARE NOT PERMITTED TO, NOR CAN YOU ALLOW ANY THIRD PARTY TO, USE THE API DOCUMENTATION TO CREATE ANY PRODUCT OR SERVICE THAT IS COMPETITIVE WITH, OR COULD OTHERWISE BE USED IN LIEU OF, ANY KITU PRODUCT OR SERVICE. You are not permitted to sell, rent, lease, lend or otherwise transfer the API Documentation on a permanent or temporary basis. You are not permitted, nor can you allow any third party to remove any proprietary notices, labels or trademarks on the API Documentation. You are not permitted, nor can you allow any third party, to use KITU's or KITU's suppliers' name, logos, or trademarks in any manner including, without limitation, in your advertising or marketing materials, except to the minimum extent necessary to affix the appropriate copyright or other proprietary notices as required herein. You may not sublicense the API Documentation, or assign, delegate or otherwise transfer this license or any of the related rights or obligations for any reason. Any attempt to make any such sublicense, assignment, delegation or other transfer by you shall be void.
OWNERSHIP & COPYRIGHT
All title, ownership rights, and intellectual property rights in and to the API Documentation and any copies thereof are vested in and shall remain in KITU and/or its suppliers. You agree that you neither own nor hereby acquire any claim or right of ownership to the API Documentation or to any related patents, copyrights, trademarks or other intellectual property. This license is not on sale of the original or any subsequent copy. The API Documentation is protected by the copyright laws and other intellectual property laws of the United States and international treaties.
TERM AND TERMINATION
The license shall commence upon your assent to the terms hereof, and is effective until terminated. You may terminate this license at any time by destroying the API Documentation and all copies. This license automatically terminates if you fail to comply with its terms and conditions. You agree that, upon such termination, you will destroy (or permanently erase) all copies of the API Documentation. You are not permitted to make any further use of the API Documentation following the termination of this Agreement. Any terms herein which contemplate continuing effectiveness, including, without limitation, terms regarding ownership, restrictions, confidentiality, warranty exclusions, limitations of liability, and general terms shall survive any termination of this Agreement.
THE API DOCUMENTATION IS PROVIDED SOLELY “AS IS” WITHOUT WARRANTY OF ANY KIND, AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, KITU HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE API DOCUMENTATION IS AT YOUR SOLE RISK.
LIMITATION OF LIABILITY AND REMEDIES
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW: (I) IN NO EVENT WILL KITU OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF YOUR USE OR INABILITY TO USE THE API DOCUMENTATION INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF SUCH USE OR INABILITY TO USE THE API DOCUMENTATION, EVEN IF KITU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY; AND, (II) KITU’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION, SHALL NOT EXCEED THE GREATER OF (A) THE AMOUNT YOU PAID FOR THE API DOCUMENTATION; OR (B) FIFTY U.S. DOLLARS ($50).
This Agreement represents the complete and final agreement concerning the license granted hereunder and replaces any and all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter herein. This Agreement may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the remainder of this Agreement shall nonetheless remain in full force and effect. This Agreement shall be construed, governed, and enforced solely and exclusively by the law of the State of California, USA, excluding conflict of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You hereby agree that the courts located in San Diego County, California, USA, will constitute the sole and exclusive forum for the resolution of any and all disputes arising out of or in connection with this Agreement and you hereby irrevocably consent to the personal jurisdiction and venue of such courts and irrevocably waive any objections thereto. You may not assign this Agreement to any third party without first obtaining the express written consent of KITU and any assignment by you without such consent shall be null and void. KITU may freely assign this Agreement to any third party.
The API Documentation and related technology may not be downloaded or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the API Documentation, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you agree to comply with any other applicable U.S. export control laws and any local laws in your jurisdiction that may impact your right to import, export, or use the API Documentation. By downloading or using the API Documentation, you are also representing and warranting that you will not use, or permit or authorize others to use, the API Documentation in connection with the design, development, production, stockpiling or use of any chemical or biological weapons. You agree to defend, indemnify and hold KITU harmless from any claims arising out of or relating to your violation of the foregoing.
U.S. GOVERNMENT RESTRICTED RIGHTS LEGEND
If the entity entering into this Agreement is a department, branch agency or instrumentality of the United States Government, the following provision applies. The API Documentation is comprised of “commercial computer software documentation” as such term is used in 48 C.F.R. 12.212 and is provided to the Government: (a) only with the limited rights as expressly set forth herein; (b) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (c) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 22.7202-3