Terms and Conditions of Kyligence End User License
END USER LICENSE TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS (THESE “TERMS”) APPLY TO YOUR USE OF THE PRODUCTS (AS DEFINED BELOW) PROVIDED BY SHANGHAI KYLIGENCE INFORMATION TECHNOLOGY, INC. (“KYLIGENCE”).
PLEASE READ THESE TERMS CAREFULLY.
IF YOU (“YOU” OR “CUSTOMER”) PLAN TO USE ANY OF THE PRODUCTS ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ACCEPT ALL OF THE TERMS AND CONDITIONS SET FORTH IN AN ACCEPTED REQUEST (AS DEFINED BELOW) AND THESE TERMS (COLLECTIVELY, THE “AGREEMENT”) ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
BY USING ANY OF THE PRODUCTS, YOU ACKNOWLEDGE AND AGREE THAT:
(A) YOU HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT;
(B) YOU UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT;
(C) YOU AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OR CONDITIONS OF THESE TERMS, YOU MAY NOT USE ANY PORTION OF THE PRODUCTS.
THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE YOU FIRST DOWNLOAD ANY OF THE PRODUCTS.
For the purpose of this Agreement, “Product” shall mean any of Kyligence’s products and software including but not limited to: Kyligence Analytics Platform, any trial software, and any software, any upgrades, updates, bug fixes or modified versions (collectively, “Upgrades”) related to the foregoing. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT: (1) CUSTOMER HAS NO LICENSE OR RIGHT TO MAKE OR USE ANY ADDITIONAL COPIES OR UPGRADES UNLESS CUSTOMER, AT THE TIME OF MAKING OR ACQUIRING SUCH COPY OR UPGRADE, ALREADY HOLDS A VALID LICENSE TO THE ORIGINAL SOFTWARE AND HAS PAID THE APPLICABLE FEE TO AN APPROVED SOURCE FOR THE UPGRADE OR ADDITIONAL COPIES; (2) USE OF UPGRADES IS SUPPLIED BY AN APPROVED SOURCE FOR WHICH CUSTOMER IS THE ORIGINAL END USER PURCHASER OR OTHERWISE HOLDS A VALID LICENSE TO USE THE PRODUCTS WHICH IS BEING UPGRADED; AND (3) THE MAKING AND USE OF ADDITIONAL COPIES IS LIMITED TO NECESSARY BACKUP PURPOSES ONLY.
2. Entire Agreement.
This Agreement includes these Terms, any exhibits or web links attached to or referenced in these Terms and any terms set forth on the Kyligence web site at https://kyligence.io. This Agreement is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof.
3. License Delivery
Kyligence grants to Customer a nonexclusive, nontransferable, nonsublicensable, revocable and limited license to access and use the applicable Product as defined above in Section 1 solely for Customer’s internal purposes. The Product is delivered via electronic download or other approved source made available following Customer’s acceptance of this Agreement.
4. License Restrictions
Unless expressly otherwise set forth in this Agreement, Customer will not:
(a) modify, translate or create derivative works of the Product;
(b) decompile, reverse engineer or reverse assemble any portion of the Product or attempt to discover any source code or underlying ideas or algorithms of the Product;
(c) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Product;
(d) make, have made, reproduce or copy the Product;
(e) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Product;
(f)use or permit the Products to be used to perform services for third parties, whether on a service bureau or time sharing basis or otherwise, without the express written authorization of Kyligence; or
(g) cause or permit any other party to do any of the foregoing.
As between Kyligence and Customer and subject to the grants under this Agreement, Kyligence owns all right, title and interest in and to: (a) the Product (including, but not limited to, any upgrades, modifications thereto or derivative works thereof); (b) all ideas, inventions, discoveries, improvements, information, creative works and any other works discovered, prepared or developed by Kyligence in the course of or resulting from the provision of any services under this Agreement; and (c) any and all Intellectual Property Rights embodied in the foregoing. For the purpose of this Agreement, “Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing. As between the parties and subject to the terms and conditions of this Agreement, Customer owns all right, title and interest in and to the data generated by the use of the Products by Customer. There are no implied licenses in this Agreement, and Kyligence reserves all rights not expressly granted under this Agreement. No licenses are granted by Kyligence to Customer under this Agreement, whether by implication, estoppels or otherwise, except as expressly set forth in this Agreement.
“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Kyligence to Customer concerning or related to this Agreement or Kyligence (whether before, on or after the Effective Date) which Customer knows or should know, given the facts and circumstances surrounding the disclosure of the information by Customer, is confidential information of Kyligence. Confidential Information includes, but is not limited to, the components of the business plans, the Products, inventions, design plans, financial plans, computer programs, know-how, customer information, strategies and other similar information. Customer will, during the term of this Agreement, and thereafter maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted herein. Customer will use the same degree of care in protecting the Confidential Information as Customer uses to protect its own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by Customer solely for the purpose of using the Products in accordance with this Agreement. In addition, Customer: (a) will not reproduce Confidential Information, in any form, except for the purpose of using the Products in accordance with this Agreement; and (b) will only disclose Confidential Information to its employees and consultants who have a need to know such Confidential Information in order to guarantee customer’s use of the Products in accordance with this Agreement and if such employees and consultants have executed a non-disclosure agreement with Customer with terms no less restrictive than the non-disclosure obligations contained in this Section. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement through no fault of Customer; (ii) Customer can reasonably demonstrate was in its possession prior to first receiving it from Kyligence; (iii) Customer can demonstrate was developed by Customer independently and without use of or reference to the Confidential Information; or (iv) Customer receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Customer to Kyligence with respect to the Products (collectively, “Feedback”) will constitute Confidential Information. Further, Kyligence will be free to use, disclose, reproduce, license and otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise. Subject to applicable law, in connection with the performance of this Agreement and Customer’s use of the Kyligence Products, (i) Kyligence agrees that it will not require Customer to deliver to Kyligence any personally identifiable information (“PII”) and (ii) Customer agrees not to deliver any PII to Kyligence.
7. Warranty Disclaimer
Customer represents warrants and covenants that: (a) all of its employees and consultants will abide by the terms of this Agreement; (b) it will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of this Agreement. Notwithstanding any terms to the contrary in this Agreement, Customer will remain responsible for acts or omissions of all employees or consultants of Customer to the same extent as if such acts or omissions were undertaken by Customer. THE PRODUCTS ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. KYLIGENCE AND ITS SUPPLIERS DO NOT WARRANT THAT ANY OF THE PRODUCTS WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. KYLIGENCE AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE PRODUCTS WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (I) WARRANTIES OF MERCHANTABILITY, (II) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT KYLIGENCE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS RELIED ON NO WARRANTIES. In addition, due to the continual development of new techniques for intruding upon and attacking networks, KYLIGENCE does not warrant that the Products or any system or network on which the products is used will be free of vulnerability to intrusion or attack.
Customer will indemnify, defend and hold Kyligence and its directors, officers, employees, suppliers, consultants, contractors, and agents (“Kyligence Indemnitees”) harmless from and against any and all actual or threatened suits, actions, proceedings (at law or in equity), claims (groundless or otherwise), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) resulting from any claim (including third-party claims), suit, action, or proceeding against any Kyligence Indemnitees, whether successful or not, caused by, arising out of, resulting from, attributable to or in any way incidental to:
(a) any breach of this Agreement (including, but not limited to, any breach of any of Customer’s representations, warranties or covenants);
(b) the negligence or willful misconduct of Customer; or
(c) the data and information used in connection with or generated by the use of the Products.
9. Limitation of Liability
EXCEPT FOR ANY ACTS OF FRAUD, OR WILLFUL MISCONDUCT, IN NO EVENT WILL: (A) KYLIGENCE BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY FOR ANY LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, ANY OTHER COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS (INCLUDING RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCTS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF KYLIGENCE HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) KYLIGENCE’s TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF THE AGGREGATE OF THE AMOUNTS PAID OR PAYABLE TO KYLIGENCE, IF ANY, UNDER THIS. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
10. Third-Party Suppliers
The Product may include software or other code distributed under license from third-party suppliers (“Third Party Software”). Customer acknowledges that such third-party suppliers disclaim and make no representation or warranty with respect to the Products or any portion thereof and assume no liability for any claim that may arise with respect to the Products or Customer’s use or inability to use the same.
11. Diagnostics and Reporting
Customer acknowledges that the product contains a diagnostic functionality as its default configuration. The diagnostic function collects configuration files, node count, software versions, log files and other information regarding your environment and use of the Products, and reports that information to Kyligence for use to proactively identify potential support issues, to understand Customer’s environment, and to enhance the usability of the Products. While Customer may elect to change the diagnostic function in order to disable regular automatic reporting or to report only on filing of a support ticket, Customer agrees that, no less than once per quarter, it will run the diagnostic function and report the results to Kyligence.
The term of this Agreement commences on the Effective Date and continues for the period stated on Kyligence’s website, unless terminated for Customer’s breach of any material term herein. Notwithstanding any terms to the contrary in this Agreement, in the event of a breach of Sections 3, 4 or 6, Kyligence is entitled to immediately terminate this Agreement. Upon expiration or termination of this Agreement: (a) all rights granted to Customer under this Agreement will immediately cease. In such event, Customer shall forthwith stop using the Products; and (b) Customer will promptly provide Kyligence with all Confidential Information (including, but not limited to the Products) then in its possession or destroy all copies of such Confidential Information, at Kyligence’s sole discretion and direction. Notwithstanding any terms to the contrary in this Agreement, this sentence and the following Sections will survive any termination or expiration of this Agreement: 4, 6, 7, 8, 9, 10, 12, 14, and 15.
13. Beta Software
In the event that Customer uses the functionality in the Product for the purposes of downloading and installing any Kyligence-provided public beta software, such beta software will be subject either to the Apache 2 license, or to the terms and conditions of the Public Beta License as applicable.
14. Third Party Resources
Kyligence Products may include hyperlinks to other web sites or content or resources (“Third Party Resources”), and the functionality of such Kyligence Products may depend upon the availability of such Third Party Resources. Kyligence has no control over any Third Party Resources. You acknowledge and agree that Kyligence is not responsible for the availability of any such Third Party Resources, and does not endorse any advertising, products or other materials on or available from such Third Party Resources. You acknowledge and agree that Kyligence is not liable for any loss or damage which may be incurred by you as a result of the availability of Third Party Resources, or as a result of any reliance placed by you on the completeness, accuracy or existence of any advertising, products or other materials on, or available from, such Third Party Resources.
Choice of Law and Disputes. This Agreement will be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the conflicts of law principles of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara, California, and the parties hereby consent to personal jurisdiction and venue therein (except that Kyligence may seek injunctive relief to prevent improper or unauthorized use or disclosure of any Kyligence Software in any court of competent jurisdiction). Upon such determination that any provision is invalid, illegal, or incapable of being enforced, Kyligence remains the right to change and explain such provisions. Any notices to be sent to Customer posted on the web site of Kyligence shall be deemed having been sufficiently and legally delivered to Customer. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control, including but not limited to fire, storm, floods, earthquakes, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of service by any service providers being used by Kyligence to link its servers to the Internet, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third-party. In the event of any such delay the date of delivery will be deferred for a period equal to the time lost by reason of the delay. Unless otherwise provided, any notice or communication required or permitted to be given hereunder must be in writing signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, confirmed facsimile or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address below[B&Y1] or at such other address as may hereafter be furnished in accordance with this Section. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless made in an agreement clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.