Enterprise Software License
Last Revised: November 13, 2018
End User License Agreement (v. 09.30.18 web)
PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE SOFTWARE (DEFINED BELOW). THIS AGREEMENT (DEFINED BELOW) GOVERNS YOUR RIGHTS AS TO SOFTWARE AND ANY SERVICES SUPPLIED BY KONG INC., A DELAWARE CORPORATION, WITH A PRINCIPAL PLACE OF BUSINESS AT 251 POST STREET 2ND FLOOR, SANFRANCISCO, CA, 94108 USA, AND ANY SUCCESSOR IN INTEREST OR ASSIGNEE OF KONG (‘KONG”). THIS AGREEMENT IS EFFECTIVE ON THE EARLIER OF THE DATE THAT YOU PLACE AN ORDER FOR SOFTWARE AND/OR SERVICES OR WHEN YOU RECEIVE A LICENSE KEY FOR ACCESS TO THE SOFTWARE AND/OR OBTAIN ANY SERVICES FROM KONG, WHICHEVER IS EARLIER (“EFFECTIVE DATE”).
IF YOU ARE AN EMPLOYEE, CONSULTANT, OR CONTRACTOR TO AN ENTITY LISTED ON THE ORDER, YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED TO BE THE AGREEMENT OF THAT ENTITY IDENTIFIED IN THE RELEVANT ORDER (“CUSTOMER”) AND YOU AND THE CUSTOMER REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND THE CUSTOMER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
KONG IS ONLY WILLING TO LICENSE THE SOFTWARE TO THE CUSTOMER AND/OR PROVIDE SERVICES UPON THE CONDITION THAT CUSTOMER ACCEPTS ALL THE TERMS CONTAINED HEREIN. BY USING THE SOFTWARE, OR BY ALLOWING ANY USER TO DOWNLOAD AND OR USE THE SOFTWARE, THE CUSTOMER INDICATES THAT IT UNDERSTANDS THIS AGREEMENT AND ACCEPTS ALL OF ITS TERMS. IF YOU OR CUSTOMER DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT NEITHER YOU NOR THE CUSTOMER WILL BE AUTHORIZED TO USE OR ALLOW ANY USER TO USE ANY PART OF THE SOFTWARE.
KONG’S ACCEPTANCE OF ANY ORDER FOR THE SOFTWARE AND/OR SERVICES (WHETHER DIRECT OR INDIRECT VIA AN AUTHORIZED RESELLER) IS EXPRESSLY CONDITIONAL ON ASSENT TO THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS (SPECIFICALLY INCLUDING ANY NEW OR DIFFERENT TERMS CONTAINED IN CUSTOMER’S PURCHASE ORDER); IF ANY OTHER TERMS ARE CONSIDERED AN OFFER BY THE CUSTOMER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.
CUSTOMER AND KONG AGREE AS FOLLOWS:
1. Certain Definitions. For purposes of this Agreement, the following definitions apply:
“Affiliate” means any entity Controlling, Controlled by or under common Control with a party. >
“Agreement” means this End User License Agreement, including all the attachments and exhibits hereto, any SOWs referencing this Agreement, and any terms incorporated herein by reference.
“Authorized Reseller” means any authorized reseller of Kong Software who validly sells Customer a license to the Software subject to the terms and conditions of this Agreement.
“Control” and its grammatical variants means (i) a general partnership interest in a partnership, (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors, or (iii) the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.
“Documentation” means the written and/or electronic end user or technical documentation pertaining to the Software that is provided by Kong to Customer together with the delivery of the Software.
“Internal Business Purposes” means use of the Software by Customer’s Users on behalf of and for the benefit of Customer or Customer Affiliates, solely for the purposes of Customer’s or Customer Affiliates’ internal business projects and to deploy such projects in production mode for Customer’s or Customer Affiliates’ exclusive internal use and benefit.
“License Parameter(s)” means any factor that serves as a basis for calculating the amount of fees payable for the license to the Software as identified in the Order, including, for example, where relevant: (a) the number of persons who may use the Software at the same time; (b) number of API calls (c) the name or the type of persons and relevant count who may use the Software; (d) the number or locations of sites where the Software may be deployed; (e) the number of servers on which the Software may be deployed or the processing power or number of CPUs in those servers; and/or (f) the intensity of use by any person, whether measured by time the Software is executing, processing power, or the types of functions being performed.
“License Term” means the term of the license granted with respect to the Software as identified on the relevant Order, or if no term is specified then one (1) year. For clarity, the License Term shall be subject to the termination rights specified herein.
“Order” means an ordering document that identifies the commercial terms of the purchase, namely, for example, the Software
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licensed, and the Services purchased hereunder (if any), the applicable Licensing Parameters, the License Term, and any pricing and payment terms relating to the same. Orders may be direct between Kong and Customer or indirect via an Authorized Reseller of Kong. Multiple Orders may apply if additional licenses, products, or services are purchased, provided that, unless expressly stated otherwise, terms specified in an Order shall be relevant only to that Order.
“Services” means any professional services to be delivered by Kong personnel to Customer which are outlined in a SOW or the Order, e.g. training, configuration, implementation, etc. For clarity, Services does not include Support and Maintenance Services, which are separately defined below.
“Software” means the software product identified in the Order which are identified made available to Customer by Kong, together with any Upgrades (defined below), and related Documentation, all to the extent provided or made available to Customer under this Agreement.
“Third Party Open Source” means any publicly available third party open source software which may be delivered to Customer together with or as part of the version of the Software delivered to Customer. Please see specific list available at https://konghq.com/copyright-kong-ee/ (or such updated URL provided by Kong from time to time). For clarity, any Third Party Open Source delivered hereunder is provided free of charge and is subject to the applicable open source license(s) which are relevant to the code.
“Upgrades” means error corrections, bug fixes, software updates and software upgrades to the Software that are released during the relevant License Term and made generally available by Kong to other Kong enterprise customers purchasing a license to the relevant Software.
“User” means any individual authorized by Customer (or any Customer Affiliate or contractor) to access, use, or otherwise manipulate the Software.
2. Ordering; Software Delivery; License Start Date. Customer may place an initial order for Software or Services (and renewal orders) by executing an Order identifying the specific Software or Services ordered either with Kong or an Authorized Reseller. Software shall be delivered to Customer electronically in a license file promptly after the Order is executed and becomes effective. The start date of the License Term shall be the start date the license file is electronically delivered to Customer, unless a different date is specified in the Order.
3.1 Software License. Subject to the terms and conditions of this Agreement, during the License Term, Kong grants to Customer (and any Users authorized by Customer or Customer Affiliates to use the Software), a non-exclusive, non- transferable and non-sublicensable license to: (i) install instances of the Software on computers owned or controlled by Customer or its Affiliates, and (ii) use the Software for Customer’s and/or Customer Affiliates’ Internal Business Purposes in accordance with the relevant Documentation and the use restrictions stated in this Agreement and the Order within the confines of the Licensing Parameters outlined in the Order. Customer may maintain a reasonable number of copies of the Software on its systems for backup and recovery purposes, provided use of such copies is strictly limited to back up or disaster recovery purposes.
3.2 Evaluation Copies of any Kong Software. For any pre-release versions, or beta copies or evaluation of Kong proprietary software provided to Customer after the Effective Date of this Agreement, the following terms shall apply (notwithstanding any contrary term specified in any other sections of this Agreement): (i) the proprietary software delivered shall be deemed “Software” hereunder and the license to use such Software shall terminate at the end of the evaluation period identified by Kong or Kong’s Authorized Reseller (or if no period identified then in thirty (30) days from delivery of access to such Software) and use of such Software by Customer or Customer Users shall be for the limited purpose of evaluating the relevant Software and establishing Customer’s desire to purchase licenses to Software or providing any feedback desired; and (ii) such Software is provided “As Is” without any warranty of any kind; and (iii) Customer shall not be entitled to any Support and Maintenance Services or any Upgrades with respect to such Software unless a license is later purchased; and (iv) Kong and/or the Authorized Reseller may terminate the license to such Software with written notice to Customer and require Customer to promptly return the evaluation copies of the Software and remove all copies of Software from its systems.
4. Restrictions. Except as otherwise expressly permitted under this Agreement, Customer shall not (and shall not authorize or permit any third party including any Users to): (i) copy or use the Software or any portion thereof in excess of or beyond the Licensing Parameters and/or other restrictions/limitations described in this Agreement or the Order; (ii) modify the Software or create derivative works based upon the Software or reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except and only to the extent any foregoing restriction is prohibited by applicable law; (iii) create a program or a set of programs similar or identical to the Software, using any elements or functionalities of the Software to do so; (iv) use the Software in any way that is unlawful or in violation of any applicable laws; (v) distribute, sell, or license the Software to third parties other than Users; (vi) use or permit the Software to be used to perform services for third parties, whether on a service bureau, SaaS, time sharing basis or otherwise; (vii) install the Software on computers or systems
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which are not owned or controlled by Customer or its Affiliates; (viii) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Software without the prior written approval of Kong; (ix) share user accounts for access/use of the Software; or (x) alter or remove any proprietary notices or legends contained on or in the Software. For the avoidance of doubt, all restrictions specified herein with respect to Software apply to all components (including Documentation). There are no implied licenses granted by Kong under this Agreement. It is the responsibility of the Customer to ensure that all Users are aware of the terms and conditions (including the restrictions) of this Agreement. Customer agrees that all actions or inactions of Users shall be deemed an action or inaction by Customer and that Customer shall be liable and responsible for any action or inaction of the Users which is in violation of the terms of this Agreement.
5. Support and Maintenance. As part of its purchase of a subscription license to Software, Customer shall be entitled to receive Support and Maintenance Services. “Support and Maintenance Services” shall mean the standard support and maintenance services delivered by Kong to its customers in connection with the relevant subscription license to the Software purchased in accordance with Kong’s support and maintenance policy found at https://konghq.com/supportandmaintenancepolicy/ (or such updated URL provided by Kong from time to time) (“Kong Support and Maintenance Policy”). For clarity, such Support and Maintenance Services are included as part of the license purchased to the Software and includes Upgrades to the Software as they become generally available to other Kong customers during the relevant License Term. Kong may make changes to this policy with thirty (30) days’ notice to Customer (via the support portal or otherwise), provided such change is in connection with a standard change made to its then-current standard support and maintenance terms and there is no material degradation of the support offering. Notwithstanding the foregoing, if Customer has placed its Order through an Authorized Reseller who is obligated to provide support directly to Customer, then the Kong Support and Maintenance Policy shall not apply to Customer, and Customer’s support and maintenance services will be provided by the Authorized Reseller.
6. Professional Services. If Customer orders Services (e.g. training, installation, configuration or other such professional services) relevant to the implementation, use or management of the Software, such Services shall be delivered subject to the terms and conditions of this Agreement and the relevant statement of work (“SOW”) or Order. For clarity, Customer may order standardized professional Services that are identified on Kong’s then current price list and described in a standardized SOW published by Kong and delivered to Customer (“Standard SOW”) or the parties may agree to customized professional Services related to the Software as set forth in a mutually agreed upon SOW (“Custom SOW”), which Standard SOW and/or Custom SOW are hereby incorporated by reference herein to the extent relevant.
7. Fees; Payment Terms; Licensing Parameters; Reporting.
7.1 Fees; Payment Terms. Customer will make all payments identified on the Order in accordance with its terms. Unless otherwise stated herein, orders are non-cancelable, and all payments are non-refundable, and payments are not subject to any deduction or set-off. If the Order is placed indirectly through an Authorized Reseller, then the Order entered into with the Authorized Reseller shall identify the fees due and payment terms. If the Order is entered into directly with Kong and not through an Authorized Reseller, then the following terms shall apply: (i) Kong invoices shall be paid by Customer within thirty (30) days of the effective date of the relevant Order, unless other payment terms are agreed to in the Order; (ii) all amounts are payable in U.S. Dollars; (iii) all fees outlined in the Orders are exclusive of all taxes, duties, shipping fees, and similar amounts, all of which are Customer’s responsibility (excluding taxes based on Kong or its Authorized Reseller’s income); and (iv) if Customer is in default of making any payment due to Kong, then Kong may, without prejudice to other remedies available, assess a late payment charge, at the lower rate of 1.5% per month, or the maximum rate under applicable law, and/or suspend delivery of any product or service hereunder.
7.2 Licensing Parameters; Reporting. In connection with the use of the Software, Customer shall not exceed the Licensing Parameters agreed to as part of the Order. At any time during the License Term, if Customer desires to increase the relevant Licensing Parameters, or if Customer learns that Customer’s actual usage (“Actual Usage”) exceeds the relevant Licensing Parameters paid for by Customer (“Purchased Usage”), then Customer shall notify Kong (or the Authorized Reseller) and pay the incremental fees due, and after the relevant Order is placed, the relevant Licensing Parameters shall be amended to reflect this change. Within thirty (30) days of Kong’s or its Authorized Reseller’s written request, Customer will provide Kong or its Authorized Reseller (as relevant) a report, which report shall identify usage required to show compliance with the Licensing Parameters and compliance with licensing restrictions identified herein and in the Order. In order to verify compliance with this Agreement or to verify the report provided hereunder, upon written request to Customer, which request shall not be made more than once per quarter, Customer shall provide Kong access to the relevant product usage logs generated by the Software to show compliance with Licensing Parameters and other license restrictions. Kong and/or its Authorized Resellers may invoice Customer if it learns of any shortfalls, i.e. that the Actual Usage is above the Purchased Usage. Unless otherwise mutually agreed in writing, the fees charged to Customer for the additional usage will be based on the then current pricing charged to the Customer in the relevant Order and fees shall be charged for the balance of the term so that the licenses may be coterminous with the existing licenses.
8. Ownership. The Software is licensed and not sold. Kong and its licensors shall own and retain all right, title, and (except
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as expressly licensed hereunder) interest in and to the Software and all copies or portions thereof, and any derivative works thereof (by whomever created). Customer is not required to provide any feedback or suggestions for improvement to or updates to the Software, however, to the extent provided, all suggestions or feedback relating to the Software which provided by Customer, its employees, contractors or agents (including Users) to Kong shall be Kong’s property, and Customer hereby assigns the same to Kong.
9.1 “Confidential Information” means any non-public data, information and other materials regarding the products, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by or made available by one party (“Disclosing Party”), either directly or indirectly through third parties, to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. The parties agree that, without limiting the foregoing, the Software (and any performance data, benchmark results, and technical information relating thereto), the Documentation and, Kong’s pricing information shall be deemed the Confidential Information of Kong, and the terms and conditions of this Agreement (but not its existence) shall be deemed the Confidential Information of both parties. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information.
9.2 Duties. Except as expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform hereunder (including providing the features and services associated with the normal use of the Software) or exercise rights granted to it hereunder; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Disclosing Party’s Confidential Information only to its Affiliates, and those employees, agents and contractors of the Receiving Party and those of its Affiliates who have a need to know such information for the purposes of this Agreement, provided that any such employee, agent or contractor shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such Affiliates, and its or their employees, agents or contractors with the terms of this Agreement.
9.3 Disclosures Required by Law. Either party may disclose Confidential Information of the other party if it is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure (to the extent permitted by law) and reasonably cooperates with the Disclosing Party in limiting such disclosure and ensuring confidential handling of the Confidential Information.
10. Term and Termination. The Order and the Software license granted as part of any Order shall remain effective until terminated or until the License Term expires, whichever is earlier. This Agreement shall be effective as of the Effective Date and shall remain in effect until terminated or until the License Term for all Software licensed pursuant to any Order expires, whichever is earlier. This Agreement may be terminated by a party: (i) upon thirty (30) days written notice, if the other party materially breaches any provision of this Agreement and such breach remains uncured after such thirty (30) day notice period expires; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations without a successor; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days. Upon termination of this Agreement, Customer shall destroy (or at Kong’s option, return) all copies of Software in its possession or control. Sections 1, 4, 7, 8, 9, 10, 11, 12, 13, and 14 shall survive any termination or expiration of this Agreement.
11. Indemnity. Subject to the terms of this section, Kong shall defend, and indemnify and hold harmless Customer, Users, and their respective officers and employees (“Customer Indemnitee(s)”) from any and all costs, expenses, losses, damages, and settlement amounts required to settle, any third party claims brought against Customer Indemnitees that the Software infringes or violates third party intellectual property rights, provided that Customer Indemnitee(s): (a) give Kong prompt written notice of any such claim; (b) permit Kong to control and direct the defense or settlement of any such claim, provided Kong will not settle any claim which settlement terms requires Customer Indemnitee(s) to admit liability without Customer Indemnitee’s prior written consent; and (c) provide Kong all reasonable assistance in connection with the defense or settlement of any such claim, at Kong’s cost and expense. Customer Indemnitee(s) may participate in the defense and settlement at Customer’s sole expense. If such a claim occurs, or in Kong’s opinion is reasonably likely to occur, Kong, at its expense and at its sole discretion, may, in addition to its indemnification obligations hereunder: (i) procure the right to allow Customer to continue to use the Software, or (ii) modify or replace the Software or infringing portions thereof to become non-infringing, or (iii) if neither (i) nor (ii) is commercially feasible, terminate Customer’s right to use the affected portion of the Software and refund any license fees
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paid by Customer corresponding to such Software, pro-rated over the remainder of the relevant License Term. Notwithstanding the foregoing, Kong shall have no obligations under this Section to the extent any infringement claim is based upon or arises out of: (aa) any modification or alteration to the Software not made by Kong or its contractors; (bb) any combination or use of the Software with products or services not provided by Kong; (cc) Customer’s continuance of allegedly infringing activity a reasonable period after being notified thereof; (dd) Customer’s failure to use Upgrades made available by Kong; (ee) use of the Software not in accordance with the applicable Documentation or outside the scope of the license granted under this Agreement; and/or (ff) Third Party Open Source. The remedies set forth in this Section constitute Customer’s sole and exclusive remedies, and Kong’s entire liability, with respect to infringement or violation of third party intellectual property rights.
12. Limited Warranty; Disclaimer.
12.1 Mutual Warranties. Each party represents and warrants to the other that (a) it has the full power to enter into this Agreement and that this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against it, and (b) this Agreement does not contravene, violate or conflict with any other agreement of such party with any third party.
12.2 Software Warranty. For a period of sixty (60) days from the effective date of the relevant Order, Kong warrants that the Software materially conforms to its published specifications described in the relevant end user Documentation supplied by Kong. Customer’s sole and exclusive remedy and the entire liability of Kong and its suppliers and licensors under this limited warranty will be, at Kong’s option, repair or replacement of the Software, or if repair or replacement is not possible, to terminate the license and refund the license fee paid by Customer for the affected Software, provided Customer removes all copies of the relevant Software from its systems and ceases any further use of the Software.
12.3 Malicious Code. Kong will use standard industry practices to test and/or review the Software delivered or transmitted to Customer hereunder prior to its delivery or transmission for “Malicious Code” and Kong shall remove any “Malicious Code” it discovers prior to delivery of Software to Customer. “Malicious Code” as used herein shall mean any code which is designed to harm, or otherwise disrupt in any unauthorized manner, the operation of Customer’s computer programs or computer systems or destroy or damage Customer data in an unauthorized manner. For clarity, Malicious Code shall not include standard routines in Software which are intended to delete data and are implicit in the standard functionality of the Software, or any standard software bugs or errors handled through support and maintenance, or any license key or other equivalent code which may limit the functionality or scope of the use of the Software to the scope of the license purchased by Customer hereunder.
12.4 Service Warranty. For a period of thirty (30) days from the date of delivery of any Service by Kong to Customer, Kong represents and warrants to Customer that such services provided shall be professional, workman like and performed in a manner conforming to any requirements stated herein or in the relevant SOW. Kong’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for Kong to re-perform the nonconforming Services, or if Kong is unable to deliver conforming Services within a reasonable time, then refund any fees paid to Kong for the relevant non-conforming Services (if any).
12.5 Restrictions. The express warranties specified above do not apply if the applicable Software, or any portion thereof: (i) has been altered, except by Kong or its’ authorized representatives or its contractors; (ii) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or Documentation; or (iii) is licensed, for beta, evaluation, or testing purposes. Additionally, the warranties set forth herein only apply to a warranty claim made within the warranty period specified herein and does not apply to any bug, defect or error caused by or attributable to software or products or services not supplied by Kong or to Third Party Open Source.
12.6 DISCLAIMERS. EXCEPT FOR THE WARRANTIES EXPRESSLY DESCRIBED HEREIN, THE SOFTWARE, SUPPORT AND MAINTENANCE SERVICES AND ALL OTHER KONG SERVICES AND DELIVERABLES PROVIDED BY KONG HEREUNDER, ARE PROVIDED “AS IS”, AND KONG AND ITS LICENSORS PROVIDE NO OTHER WARRANTIES OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED WITH REGARD TO THE SAME. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, ALL EXPRESS, STATUTORY OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, NON-INTERFERENCE, OR ACCURACY OF INFORMATIONAL CONTENT, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED, TO THE EXTENT ALLOWED BY APPLICABLE LAW.
13. Limitation of Liabilities. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ANY LIABILITY ARISING OUT OF ANY VIOLATION OF A PARTY’S PROPRIETARY RIGHTS (INCLUDING A VIOLATION OF ANY LICENSE OR LICENSE RESTRICTIONS STATED HEREIN), OR ANY VIOLATION OF SECTION 9 (CONFIDENTIALITY):
(A) IN NO EVENT SHALL CUSTOMER, KONG, OR KONG’S LICENSORS OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL DAMAGES, OR FOR ANY
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LOST REVENUE, LOST PROFIT, LOSS OF BUSINESS, LOSS OF CONTRACTS, ANTICIPATED SAVINGS, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY LOSS OR DAMAGE TO DATA, OR ANY BUSINESS INTERRUPTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ARISING FROM SOFTWARE OR ANY SERVICES DELIVERED HEREUNDER, UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE, EVEN IF ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH; AND
(B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF CUSTOMER, KONG, KONG’S LICENSORS OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE SOFTWARE, ASSOCIATED SERVICES, OR OTHERWISE (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, UNDER STATUTE, TORT OR OTHERWISE) EXCEED THE FEES RECEIVED BY KONG UNDER THE RELEVANT ORDER (OR IN THE CASE OF CUSTOMER’S LIABILITY EXCEED THE FEES PAID OR DUE TO KONG OR ITS AUTHORIZED RESELLER UNDER THE RELEVANT ORDER), WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE; AND
(C) IN NO EVENT SHALL THE TOTAL LIABILITY OF KONG ARISING FROM OR RELATING TO ANY PROFESSIONAL SERVICES EXCEED THE AMOUNT OF FEES PAID TO KONG FOR SUCH SERVICES UNDER THE RELEVANT ORDER OR SOW, WHETHER SUCH DAMAGES ARE BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY.
MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION.
14.1 Language. This Agreement, any disputes hereunder, and all services to be provided hereunder by Kong to Customer
(if any) shall be conducted and provided in the English language.
14.2 Third Party Open Source. Notwithstanding anything else herein, Third Party Open Source shall be subject to the relevant third-party license, including the relevant proprietary notices, disclaimers, requirements and/or extended rights which are relevant to such Third Party Open Source. For a list of Third Party Open Source please see https://konghq.com/copyright- kong-ee. Kong represents that Software delivered hereunder shall not contain Third Party Open Source subject to any terms or conditions which when used as contemplated herein purports to create an obligation on Customer that Customer grant to any third party any rights to, or immunities under any intellectual property rights of Customer, or that Customer disclose or make available to third parties any of its own proprietary source code or intellectual property (or any part or derivative work thereof) under any circumstances. To the extent the terms and conditions applicable to Third Party Open Source require Kong to make an offer to provide source code or related information in connection with such Third Party Open Source, such offer is made.
14.4 Export Law Assurances. Customer understands that the Software is subject to export control laws and regulations. Customer may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all applicable laws and regulations, including United States export control laws. None of the Software or any underlying information or technology may be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and represents and warrants that customer is not located in, under control of, or a national or resident of any such country or on any such list.
14.5 U.S. Government End User Purchasers. The Software and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD
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FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Customer may provide to Government end user or, if this Agreement is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this Agreement. Use of either the Software or Documentation or both constitutes agreement by the Government that the Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
14.6 Anti-Bribery or Anti-Corruption Laws. In carrying out activities pursuant to this Agreement, each party agrees that it shall comply with and shall not commit, authorize, or permit any action by its personnel which would violate any anti-bribery or anti-corruption laws, such as the United States Foreign Corrupt Practices Act or the UK Bribery Act or any similar relevant law or regulation.
14.7 Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to or application of choice of law rules or principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in San Francisco, CA; Customer and Kong hereby agree to service of process in accordance with the rules of such courts. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply.
14.8 Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
14.9 Counterparts. This Agreement may be executed and delivered in one or more counterparts (including facsimile, PDF or other electronic counterparts), with the same effect as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one agreement.
14.10 Entire Agreement; Modifications; Conflicts. This Agreement constitutes the entire agreement between the parties with respect to the license of the Software, delivery of Support and Maintenance services, and delivery of any Services outlined in a SOW (where relevant). Except as expressly provided herein, this Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein. This Agreement prevails over any pre-printed terms or other conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even if signed and returned. Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only by a writing executed by both parties. Unless otherwise specifically set out herein, in the event of a conflict between these terms and conditions and conditions and any SOW or Order, these terms and conditions shall prevail.
14.11 Illegality. Should any term of this Agreement be declared invalid, void or unenforceable by any court of competent jurisdiction, that provision shall be modified, limited or eliminated to the minimum extent necessary to effectuate the original intent and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect.
14.12 Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
14.13 Assignment. This Agreement may not be assigned or transferred without the other party’s prior written consent, provided each party expressly reserves the right to assign this Agreement to a successor in interest of all or substantially all of its business or assets. Any action or conduct in violation of the foregoing shall be void and without effect. Kong may delegate any of its obligations hereunder, provided it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement. All validly assigned rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
14.14 Legal Fees. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
14.15 Notice. Any and all notices or other information to be given by one of the parties to the other shall be deemed sufficiently given when sent by certified mail (receipt requested), or by courier, or by hand delivery to the other party to the address set forth in the signature lines of this Agreement or other such address provided by the parties from time to time. Such notices shall be deemed to have been effective on the first business day following the day of such delivery.
14.16 EquitableRelief.ThepartiesagreethatamaterialbreachofthisAgreementadverselyaffectingKong’soritslicensors’ intellectual property rights in Software or the Confidential Information of either party may cause irreparable injury to such party for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
End User License Agreement v.9.30.18 (web) Kong Confidential and Proprietary Information- pg. 7
14.17 Independent Contractors. The parties are independent contractors for all purposes under this Agreement, and neither party shall be deemed an employee, partner, or agent of the other. Each party shall be solely responsible for any and all obligations and payments due with respect to their personnel, including any wages, salaries and amount due or payable to its personnel in connection with this Agreement. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
14.18 Forcemajeure.ExceptasexpresslyprovidedinthisAgreement,neitherpartywillbeliableforanydelayinperformance due to act of God, nature or a public enemy, earthquake, flood, fire, government order, riot, civil disobedience, labor strife, or any other cause beyond causes beyond its reasonable control and without its fault or negligence, including, by way of example and not limitation, interruption of electricity, communication or transportation (a “Force Majeure Condition”). However, the party whose performance is delayed by such Force Majeure Condition will use its best efforts to notify the other party of such delay and to minimize its effect.
14.19 Marketing. Customer agrees that Customer name and/or approved logo may be included on customer lists on Kong website or in marketing collateral.
14.20 Basis of the Bargain. Customer acknowledges and agrees that Kong has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.