Evaluation Software Agreement


Last Revised: May 8, 2018

1. License.

1.1 License Terms. Subject to the terms of this Agreement Kong grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the Evaluation Term to install Kong’s proprietary software (“Kong Software”) only on servers owned or controlled by Customer and solely for internal evaluation of the suitability of the Kong Software for Customer’s business needs. “Evaluation Term” means thirty (30) days from the date of download by Customer or such other period specified in writing by Kong. If Customer wishes to license the Kong Software after the Evaluation Term, or for purposes other than those set forth in this Section, Customer may contact Kong to discuss a production license. Any such license will be subject to a separate agreement.

1.2 Additional Restrictions on Use. Customer shall not, and shall not permit or encourage any third party to: (a) use the Kong Software for third-party training, software-as-a-service, time-sharing or service bureau use or (b) disassemble, decompile or reverse engineer any portions of the Kong Software that are not provided in source code format, or otherwise attempt to gain access to the source code to such Kong Software (or the underlying ideas, algorithms, structure or organization of the object code in the Kong Software). The foregoing restriction is inapplicable to the extent prohibited by applicable law; provided that, in the event that Customer intends to disassemble, decompile or reverse engineer the Kong Software, Customer shall first provide Kong with written notice thereof.

1.3 Copies. Section 1.1 includes the right for Customer to make copies of the Kong Software as necessary to exercise the licenses granted in Section 1.1, and a reasonable number of back-up or archival copies, provided that each such copy shall include Kong’s copyright and any other proprietary notices that appear on the original copies of the Kong Software. Customer will have no right to make back-up copies of the Kong Software.

1.4 Reservation of Rights. Kong reserves all rights not expressly granted in this Section. No rights are granted by implication.

1.5 Delivery of Materials. The Kong Software, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer. The parties shall reasonably cooperate to effectuate such delivery via FTP or other reasonable means.

2. Ownership. Customer acknowledges that Kong or its licensors retain all proprietary rights, title and interest, including all intellectual property rights, in and to the Kong Software and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), and as between the parties all such rights shall vest in Kong. Customer acknowledges that the licenses granted in Section 1.1 do not include the right to prepare any Modifications of the Kong Software.

3. Confidentiality.

3.1 Nondisclosure and Limited Use. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (“Confidential Information”). The Kong Software, Modifications, and the terms and conditions of this Agreement shall be Kong’s Confidential Information regardless of whether marked as such. Each party agrees to: (a) maintain the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein which the receiving party agrees to enforce). Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein which the receiving party agrees to enforce)) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.

3.2 Remedies. Any breach or threatened breach of this Section may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

4. Support and Disclaimer.

4.1 Support and Maintenance. Kong offers maintenance and support for the Kong Software and the Third Party Software (the “Support Services”), and Customer may purchase such Support Services as part of a separate subscription agreement with Kong. Any such agreement will be subject to Kong’s then-current policies, prices and terms and conditions.

4.2 Disclaimer of Warranties. KONG MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE KONG SOFTWARE OR ANY OTHER MATERIALS PROVIDED HEREUNDER. KONG SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE KONG SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

5. Limitation of Liability. IN NO EVENT SHALL KONG’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED $500. KONG WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF KONG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

6. Term and Termination.

6.1 Term. Unless earlier terminated as provided in this Section, this Agreement is effective as of the Effective Date and will continue until terminated in accordance with this Section (the “Term”).

6.2 Termination. Either party may terminate this Agreement upon breach by the other party of any material obligation under this Agreement which has not been cured within thirty (30) days after providing written notice of such breach to the other party.  Kong may also terminate this Agreement immediately if the Customer: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.

6.3 Effect of Termination. The rights and obligations of Kong and Customer in Sections 1.4 (Reservation of Rights), 2 (Ownership), 3 (Confidentiality), 4.2 (Warranty Disclaimer), 5 (Limitation of Liability), and 7 (Miscellaneous) shall survive termination of this Agreement. All of Customer’s rights in the Evaluation Software will terminate immediately upon termination of this Agreement. No later than five (5) days after termination of this Agreement, Customer shall return to Kong or, upon Kong’s request, destroy or render inaccessible, at Customer’s sole expense, all Confidential Information of Kong and materials containing any Confidential Information of Kong, and discontinue use of and uninstall the Kong Software, including all copies thereof. Nothing contained herein shall limit any other remedies that Kong may have for the default of Customer under this Agreement nor relieve Customer of any of its obligations incurred prior to such termination.

7. Miscellaneous.

7.1 Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Kong’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Kong shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

7.2 Entire Agreement; Modification; Waiver. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder.  Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties If there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Customer purchase order or other document, the terms and conditions of this Agreement shall prevail. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

7.3 Third Party Software.  Kong also makes available certain third party open source software (“Third Party Software”). The Third Party Software shall be subject to the applicable open source license(s) and not this Agreement, and is provided by Kong at no charge. To the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to Third Party Software require Kong to make an offer to provide source code or related information in connection with the Third Party Software, such offer is made.

7.4 Governing Law. This Agreement shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within San Francisco County, California. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

7.5 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.

7.6 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.  Each party may identify the other as a customer or supplier, as applicable.

7.7 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing.

7.8 U.S. Government Restricted Rights. If Kong Software is being licensed by the U.S. Government, the Kong Software is deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

7.9 Export Law Assurances. Customer understands that the Kong Software is subject to export control laws and regulations. Customer may not download or otherwise export or re-export the Kong 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 Kong 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.

7.10 Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”