Kontiki offers customers the opportunity to evaluate Kontiki’s Live, Video on Demand and VideoCenter Portal services (“Service”) free of charge in accordance with the terms and conditions set forth in this agreement (“Agreement”).
This Agreement between Kontiki, Inc. (“Kontiki”) and you (either as an individual or on behalf of a legal entity as an authorized employee or agent of that entity) (“Customer”) governs the use of the Service by Customer. BY CHECKING THE “I ACCEPT” BOX YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF CUSTOMER, AND ARE AGREEING THAT CUSTOMER WILL BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE THAT CUSTOMER WILL BE BOUND BY THIS AGREEMENT, DO NOT CHECK THE “I ACCEPT” BOX AND CUSTOMER MAY NOT USE THE SERVICE.
Use Rights and Restrictions.
Kontiki grants to Customer a non-exclusive, non-transferable, non‑sublicensable, revocable, restricted license during the term of this Agreement to access and use the Service solely in accordance with this Agreement. Any use of the Service will be on computers or network servers under Customer’s control solely for the purpose of internal evaluation of the Service and/or interoperability testing of the Service with Customer’s products or systems. The license to access and use the Service includes the right to use up to twenty-five (25) copies of the Kontiki desktop client application (the “Kontiki Client”) on machines under Customer’s control, which number may be increased at your reasonable request and with e-mail approval by a Kontiki sales representative. Customer agrees to operate the Service in compliance with any applicable laws, and any testing procedures and/or usage guidelines provided by Kontiki. In particular, Customer acknowledges that in the normal operation of the Service, certain of Customer’s network resources may be consumed by the Service, including without limitation, bandwidth and memory on the machines upon which the Kontiki Client is installed. Customer may not use the Service if Customer is a competitor of Kontiki (i.e., provides a similar product or service). In addition, Customer may not access or use the Service in order to monitor or discover its performance, functionality, features, availability or otherwise for Customer’s own competitive purpose or that of any third party.
Term and Termination.
The term of this Agreement will begin when Customer both accepts this Agreement and has received e-mail approval by a Kontiki sales representative (the “Effective Date”). The term of this Agreement will end thirty (30) days after the Effective Date (the “Termination Date”), which date may be extended upon Customer’s reasonable request and e-mail approval by a Kontiki sales representative. In addition, the Termination Date will occur immediately upon written or electronic notice from Kontiki to Customer in the event Customer materially breaches the terms of this Agreement. Upon the Termination Date, Customer must immediately cease all use of the Service. The terms of Sections 2 through 8 will survive any termination or expiration of this Agreement.
Ownership of Intellectual Property.
Except as otherwise expressly stated herein, nothing in this Agreement creates any right of ownership in or license to Customer in or to the Service, and each party will continue to independently own its intellectual property and proprietary information. Customer may provide feedback to Kontiki, including without limitation, usability, bug reports and test results (“Feedback”). Kontiki will own all intellectual property rights, title, and interest to the Service and Feedback and Customer agrees to assign to Kontiki all rights it may otherwise have to Feedback. Any rights not expressly granted to Customer herein are reserved by Kontiki. Customer agrees not to remove or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the Service. Customer agrees not to copy, modify, translate, disassemble, decompile, reverse engineer, create derivative works of, or make any other attempt by any means to discover or obtain the source code or other proprietary information included in the Service. As between Kontiki and Customer, Customer owns all content and/or data it uploads to the Service (“Content”). Customer represents and warrants it either owns or has sufficient rights to upload Content in connection with its use of the Service.
No Commercial Obligation.
Neither Kontiki nor Customer will be under any obligation to contract with the other for products or services as a result of participation in the activities contemplated under this Agreement.
LIMITATION OF LIABILITY.
IN NO EVENT SHALL EITHER KONTIKI BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR IN CONNECTION WITH THIS AGREEMENT. KONTIKI’S LIABILITY TO CUSTOMER OR TO ANY THIRD PARTY RELATING TO OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO $1,000.
Kontiki will use reasonable efforts to provide technical support regarding installation or use of the Service to Customer via phone or e-mail. NOTWITHSTANDING THE FOREGOING SENTENCE, HOWEVER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE AND THE KONTIKI CLIENT ARE PROVIDED TO CUSTOMER BY KONTIKI PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY WARRANTY WHATSOEVER. KONTIKI DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. IN ADDITION, KONTIKI DOES NOT GUARANTEE THAT THE SERVICE WILL BE AVAILABLE AT ALL TIMES OR AT ANY PARTICULAR TIME, OR THAT KONTIKI WILL RESPOND TO SUPPORT REQUESTS IN ANY PREDETERMINED PERIOD OF TIME.
Confidentiality, Security and Privacy.
This Agreement constitutes the entire agreement between Customer and Kontiki, and supersedes all previous agreements and understandings, whether oral or written, with respect to the subject matter hereof. This Agreement will be governed by the laws of the State of California, excluding its conflicts of laws rules. If any part of this Agreement is found to be void, unenforceable or invalid, it will not affect the other provisions of this Agreement. This Agreement can only be modified by Kontiki after providing written notice to Customer of such modification. Customer will be deemed to have accepted such modification by continuing to use the Service after receiving notice of the modification. Failure by Kontiki to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Customer may not assign this Agreement or any right or obligation hereunder without Kontiki’s prior written consent. Each party will perform its obligations hereunder as an independent contractor and not as an agent or representative of the other party. Nothing in this Agreement will be deemed or construed as creating a partnership, joint venture, or any similar relationship between the parties.
This License Agreement was last updated on September 22, 2010.