Evaluation Agreement


Last Revised: December 2, 2020

EVALUATION AGREEMENT

This Evaluation Agreement (“Agreement”) is between the individual or entity (“you” or “Company”) that accepts it, and Kong Inc., a Delaware corporation (“Kong”). You accept this Agreement by clicking an “agree” or similar button, where this option is provided by Kong, or if you use or access the Kong Services for a trial or evaluation period. Your agreement to these terms also binds your authorized users, your company or organization. If you do not agree to the terms of this Agreement, do not accept it. Before accepting this Agreement, please carefully read it. Capitalized terms used but not defined in the body of this Agreement have the meaning given them in Section 9 (Definitions).

Last updated: June 1, 2020

  1. TRIAL ACCESS
    1.1 Kong Trial Access. Subject to Company’s compliance with this Agreement, Kong will make the Kong Services available to Company at no cost during the Trial Period for evaluation purposes only. Company may permit its Contractors and Affiliates to serve as Users provided that any use of Kong Services by each such Contractor or Affiliate is solely for the benefit of Company or such Affiliate. Company will be responsible for each User’s compliance with this Agreement.
    1.2 Trial Period; Termination. The Trial Period is 15 days, unless a different period is provisioned by Kong, or unless earlier terminated by Kong.  Kong may terminate the Trial Period at any time, in its discretion, without cause, by removing Company’s access to the Kong Service or by notice.
    1.3 Company Data on Termination. On expiration of the Trial Period, Company’s access to the Kong Services will terminate, and all Company Configuration Data will be deleted.
    1.4 Non-Production/Sandbox Data Only. Company agrees that it will not transmit production, Company customer, or personal data through the Kong Services under this Agreement. Without limiting the generality of the foregoing, Company agrees not to transmit to or through the Kong Services any HIPAA Data or credit card or payment information under this Agreement.
    1.5 General Restrictions. Company will not (and will not permit any third party to): (a) sell, rent, lease, license, loan, export or sell access to Kong Services to any third party or in a service bureau or outsourcing offering , (b) interfere with, disrupt, alter, or modify the Kong Services or any part thereof, or create an undue burden on the Kong Services or the networks or services connected to the Kong Services; (c) remove or obscure any proprietary or other notices contained in Kong Services or the Documentation; (d) introduce software or automated agents or scripts into the Kong Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Kong Services; (e) perform or publish any benchmark tests or analyses relating to the Kong Services without Kong’s written consent; or (f) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to Kong Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Kong).
  2. INTELLECTUAL PROPERTY
    2.1 Kong Technology. Company agrees that Kong or its licensors retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Kong Services, all Documentation and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated (collectively, “Kong Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Kong Technology is granted to Company. Notwithstanding anything to the contrary herein, Kong may freely use and incorporate into Kong’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Company or by any users of Kong Services relating to Kong’s products or services(“Feedback”).
  3. COMPANY INFORMATION
    3.1 Rights in Company Information. As between the parties, Company or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to any data, code, video, images or other materials of any type that Company, its Affiliates, Users and/or end users transmit to or through the Kong Services, and any modifications made thereto in the course of the operation of Kong Services as provided to Kong (collectively, “Company Information”). Subject to the terms of this Agreement, Company hereby grants to Kong a non-exclusive, worldwide, royalty- free right to use, copy, store, transmit, modify, create derivative works of, and display the Company Information solely to the extent necessary to provide the Kong Services to Company, or to prevent or address service or technical problems under this Agreement, or as may be required by law.
    3.2 Service Data. Notwithstanding anything to the contrary in this Agreement, Kong has the right to collect and use Service Data to develop, improve, support, and operate its products and services during and after the term of this Agreement. This Section does not give Kong the right to identify Company as the source of Service Data without written permission from Company.
  4. SECURITY. Kong uses industry standard security measures with respect to the Kong Services. However,  the use of Kong Services necessarily involves transmission of Company Information over networks that are not owned, operated or controlled by Kong, and Kong is not responsible for any Company Information that is lost, altered, intercepted or stored across such networks. Kong cannot guarantee that our security procedures will be error-free, that transmission of Company Information will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.
  5. CONFIDENTIALITY. Each party (as Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
  6. WARRANTY DISCLAIMER
    6.1 Warranty Disclaimer. THE KONG SERVICES UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND KONG MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. KONG DOESNOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. KONG WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR THIRD-PARTY HOSTING PROVIDERS. KONG DOES NOT MAKE ANY WARRANTIES AND WILL HAVE NO OBLIGATIONS WITH RESPECT TO THIRD PARTY APPLICATIONS. COMPANY MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
  7. LIMITATION OF REMEDIES AND DAMAGES.  IN NO EVENT WILL KONG’S LIABILITY, OR THOSE OF ITS AFFILIATES OR LICENSORS, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS. EXCEPT FOR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, LOSS OF DATA, OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.
  8. GENERAL TERMS
    8.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Each party will promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
    8.2 Survival. The following Sections will survive any expiration or termination of this Agreement: 2 (Intellectual Property), 3 (Company Information), 5 (Confidentiality), 6 (Warranty Disclaimer), 7 (Limitation of Remedies and Damages), 8 (General Terms), and 9 (Definitions).
    8.3 Severability; Interpretation. If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Section headings are inserted for convenience only and will not affect the construction of the agreement.
    8.4 Governing Law and Venue. This Agreement will be exclusively governed by and construed under the laws of the State of California, without reference to or application of rules governing choice of laws. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and you hereby consent to such jurisdiction. However, Kong may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over you or your Users, to seek injunctive relief.

    8.5 Notice. The address for notice to Kong under this Agreement is:
    Kong Inc.
    150 Spear Street, 16th Floor
    San Francisco CA 94105
    Mandatory Copy: legal@konghq.com 

    Kong may provide you notice under this Agreement by email or other electronic communication. You consent to receive such notices in any of the foregoing manners and agree that any such notices by Kong will satisfy any legal communication requirements.
    8.6 Waiver; Severability. The failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any rights. The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.
    8.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Kong may change and update Kong Services (in which case Kong may update the applicable Documentation accordingly).
    8.8 Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
    8.9 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint  venture,  employment,  franchise  or  agency  created  hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
    8.10 Export Control. Company agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Company represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Company will not (and will not permit any third parties to) access or use Kong Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Company will not submit to Kong Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
    8.11 Federal Government End Use Provisions. Kong provides Kong Services, including all related software and, to the extent applicable the Kong Technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to Kong Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Kong to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
    8.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. 

    9. DEFINITIONS

    Account” means Company’s account for access to Kong Services.

    Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than 50% of the voting equity securities or other equivalent voting interests of an entity.

    Confidential Information” will mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.    All    Company    Information    will     be     deemed Confidential Information of Company without any marking or further designation. All Kong Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Kong without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

    Contractor” means the independent contractors and consultants permitted by Company to serve as Users of Kong Services.

    Company Configuration Data” means data for the configuration of Company’s instances of Kong Services.

    Company Information” is defined in Section 3.1 (Rights in Company Information).

    Disclosing Party” is defined in Section 5 (Confidentiality).

    Documentation” means Kong’s technical documentation and usage guides for Kong Services.

    Feedback” is defined in Section 2.1 (Kong Technology).

    HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.

    HIPAA Datameans any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.

    Kong Services” means the instances of Kong software-as-a-service made available under this Agreement.

    Kong Technology” is defined in Section 2.1 (Kong Technology).

    Receiving Party” is defined in Section 5 (Confidentiality).

    Service Data” means query logs, and any data (other than Company Information) relating to the operation, support and/or about Company’s use of Kong Services.

    Trial Period” means the period during which Kong grants access to Company to the Kong Services under this Agreement, as set out in Section 1.2 of this Agreement.

    “User” means the persons designated and granted access to Kong Services by Company.