This Kong Konnect Evaluation Agreement (“Agreement”) is between the entity (“Company”, “you” or “your”) 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 Konnect SaaS 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).
1. TRIAL ACCESS
1.1. Kong Konnect Trial Access. Subject to your compliance with this Agreement, Kong will make the Konnect SaaS Services available to you at no cost during the Trial Period for evaluation purposes only. Company may permit its Contractors and Affiliates to serve as Authorized Users provided that any use of Konnect SaaS Services by each such Contractor or Affiliate is solely for the benefit of Company or such Affiliate. Company will be responsible for each Authorized User’s compliance with this Agreement.
1.2. Trial Period; Termination. The Trial Period is 90 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 your access to the Kong SaaS Service or by notice.
1.3. Company Configuration Data on Termination. On expiration of the Trial Period, your access to the Konnect SaaS Services will terminate, and all Company Configuration Data will be deleted.
1.4. Non-Production/Sandbox Data Only. You agree you will not transmit, manage or control production data or production environments through the Konnect SaaS Services under this Agreement. The Konnect SaaS Services may only be used in a sandbox environment and may only be used with mock data and non-production Konnect Runtimes.
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 Konnect SaaS Services to any third party or in a service bureau or outsourcing offering , (b) interfere with, disrupt, alter, or modify the Konnect SaaS Services or any part thereof, or create an undue burden on the Konnect SaaS Services or the networks or services connected to the Konnect SaaS Services; (c) remove or obscure any proprietary or other notices contained in Konnect SaaS Services or the Documentation; (d) introduce software or automated agents or scripts into the Konnect SaaS Services so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Konnect SaaS Services; (e) perform or publish any benchmark tests or analyses relating to the Konnect SaaS Services without Kong’s written consent; or (f) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to Konnect SaaS 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 Konnect SaaS 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 Konnect SaaS 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, Authorized Users and/or end users transmit to or through the Konnect SaaS Services, and any modifications made thereto in the course of the operation of Konnect SaaS 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 Konnect SaaS Services to Company, or to prevent or address service or technical problems under this Agreement, or as may be required by law.
3.2. Usage Data. Notwithstanding anything to the contrary in this Agreement, Kong has the right to collect and use Usage 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 Usage Data without written permission from Company.
4. SECURITY. Kong uses industry standard security measures with respect to the Konnect SaaS Services. However, the use of Konnect SaaS 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 KONNECT SAAS 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 Authorized 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: email@example.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 Konnect SaaS 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 Konnect SaaS Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Company will not submit to Konnect SaaS Services any information that is controlled under the U.S. International Traffic in Arms Regulations.
8.11. Federal Government End Use Provisions. Kong provides Konnect SaaS 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 Konnect SaaS 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.
“Account” means your account for access to Konnect SaaS 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.
“Authorized User” means the persons designated and granted access to Konnect SaaS Services by Company.
“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 Authorized Users of Konnect SaaS Services.
“Company Configuration Data” means data for the configuration of your Konnect Runtime through the Konnect SaaS Services.
“Company Information” is defined in Section 3.1 (Rights in Company Information).
“Company Network Environment” means the Company-controlled network on which Company deploys and operates the Konnect Runtime. This network may include your own servers, servers of third parties (such as Amazon Web Services, Microsoft Azure or Google Cloud) or some combination of them.
“Disclosing Party” is defined in Section 5 (Confidentiality).
“Documentation” means Kong’s technical documentation and usage guides for Konnect SaaS Services.
“Feedback” is defined in Section 2.1 (Kong Technology).
“Konnect Platform” means Kong’s end-to-end Service connectivity platform for the configuration, deployment, management and securing of Services. Based on the subscription level and deployment choices by the Company, the Konnect Platform may be entirely self-hosted and self-managed by the Company within the Company Network Environment, or a hybrid model where the Company may choose to use Konnect SaaS Services to control Konnect Runtimes within the Company Network Environment.
“Konnect Runtime” means the Kong Gateway Enterprise, Kong’s proprietary API gateway, version 2.3 and later.
“Konnect SaaS Services” means the instances of the Kong Konnect 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” means an API (application programming interface) for a discrete unit of programmatic functionality that is exposed for remote consumption and managed through the Konnect Platform. Examples of Services include a data transformation microservice or a billing API.
“Trial Period” means the period during which Kong grants access to Company to the Konnect SaaS Services under this Agreement, as set out in Section 1.2 of this Agreement.
“Usage Data” means query logs, and any data (other than Company Information) relating to the operation, support and/or about your use of Konnect SaaS Services and the Konnect Platform.