Effective date: February 2, 2020 (the "Agreement")
This Agreement is made between Nureva Inc. and its subsidiaries (collectively, “Nureva”) and You.
By accepting this Agreement, either by accessing or using the Developer Toolkit, or authorizing or permitting any individual to access or use the Developer Toolkit, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Nureva that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Licensee”, “You”, “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not access nor use the Developer Toolkit.
“API” means the Nureva Console application programming interface including, without limitation, any accompanying or related documentation, source code, executable applications and other materials made available by Nureva as the Nureva Console Platform, including, without limitation, through its Developer Website.
“Applications” ” means software systems, including without limitation, web or other software services or applications developed by Licensee that utilize or interact with the API pursuant to this Agreement.
“Business Information” includes, but is not limited to, information relating to intellectual property, business plans, financial information, products, services, manufacturing processes and know-how, technical information, sources of supply, strategic plans, advertising and marketing plans, customer lists, sales, profits, pricing methods, personnel and business relationships.
“CLI” or “Command Line Interface” means the text-based application provided by Nureva that permits a user to access some or all of the functions of the API without a need for a physical Nureva HDL device and includes any accompanying or related documentation, source code, scripts, executable applications and other materials made available by Nureva as the Nureva Console Platform, including, without limitation, through its Developer Website.
“Confidential Information” includes, but is not limited to, Intellectual Property Information, Business Information and Trade Secrets of Nureva, whether or not reduced to writing or other tangible expression, which Nureva may disclose to the Licensee that is designated as “confidential” or that a reasonable person knows or a person reasonably should know is confidential; provided however that Confidential Information shall not include any information which (i) was already known to the Licensee prior to the time of disclosure by Nureva, (ii) is available or becomes generally available to the public other than through a breach of this Agreement by the Licensee, (iii) is acquired or received rightfully and without confidential limitation by the Licensee from a third party, or (iv) is independently developed by the Licensee without breach of this Agreement.
“Developer Toolkit” means the API and the CLI.
“Intellectual Property Information” includes, but is not limited to, information relating to research and development, discoveries, improvements, processes, know-how, drawings, blueprints, specifications, samples, formulae, notes, patents, copyrights, trademarks, trade names, and patent, trademark and copyright applications.
“Intellectual Property Rights” means patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“Internal Use” means the use of the developer toolkit in connection with Licensee’s subscription to a Service for Licensee’s internal business purposes in accordance with the Service Agreement.
“Malicious Software” includes any software and computer code that:
and includes, without limitation, such things as worms, viruses, trojans, spyware, adware and rootkits.
“Publish” “Published” “Publishing” means the making of any Application available to any person other than Licensee or for any purpose other than for use by Licensee for Internal Use.
“Service Data” includes any data submitted to or related to the Service.
“Trade Secrets” means information that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
2.1 This Agreement governs Licensee’s rights to use and access the Developer Toolkit for the purpose of developing and implementing Applications for Internal Use. The Licensee may not Publish any Application that uses or accesses the Developer Toolkit. The Developer Toolkit Licensee’s access to and use of the Developer Toolkit for Internal Use is governed by the Service Agreement, including any and all restrictions and policies implemented by Nureva from time to time with respect to the Developer Toolkit as set forth in the Documentation, this Agreement or as otherwise communicated to Licensee (“General Developer Toolkit Policies”). You acknowledge that the Developer Toolkit covered by this Agreement is in beta test form and is not covered by warranty of any kind. You agree that the use of the Developer Toolkit is entirely at your own risk.
2.2 Subject to this Agreement, including the restrictions set forth in Section 3, Nureva grants to Licensee a non-exclusive, non-transferable, non-sublicensable, worldwide, revocable right and license during the Term (as defined in Section 13) to: (a) use and make calls to the Developer Toolkit to develop, implement and distribute Applications solely for use its Internal Use in connection with the Services; and (b) use, reproduce, distribute and transmit Service Data to the extent necessary to format and display it through the Applications for its Internal Use.
2.3 Nureva shall have a royalty-free, fully paid-up, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit and/or incorporate into the Services and/or the Developer Toolkit any suggestions, enhancement requests, recommendations or other feedback Nureva receives from Licensee.
3.1 The licenses granted in Section 2 of this Agreement are explicitly conditioned on Licensee’s adherence to the following restrictions and compliance with its responsibilities as set forth herein.
3.3 In order to use and access the Developer Toolkit, Licensee must obtain an API key (an “API Key”). Licensee may not transfer, share or disclose its API Key with any third party, shall keep such API Key and all user credentials secure, and shall use the API Key as Licensee’s sole means of accessing the API.
3.4 Licensee’s Applications shall not substantially replicate products or services offered by Nureva including, without limitation, functions or clients on platforms (such as iOS or Android) where Nureva offers its own client or function. Subject to the preceding sentence and the parties’ other rights and obligations under this Agreement, each party agrees that the other party may develop and publish applications that are similar to or otherwise compete with such party’s applications. Applications may not use or access the Developer Toolkit or a Service in order to monitor the availability, performance or functionality of any of the Developer Toolkit or a Service or for any similar benchmarking purposes.
3.5 Applications shall not, in any manner, display any form of advertising within or connected to any Service Data received by any Subscriber, Agent or End-User.
3.6 Licensee is not permitted to Publish the Applications.
3.7 Licensee shall not, under any circumstances, through Applications or otherwise, repackage or resell the Services, or any part thereof, the Developer Toolkit, or Service Data. Licensee shall not use, or assist a third party in using, the Developer Toolkit or any Software in such a way to circumvent the requirement for a login for each individual who uses the Services. Licensee is not permitted to use the Developer Toolkit or any Service Data in any manner that does or could potentially undermine the security of the Services, the Developer Toolkit, Service Data or any other data or information stored or transmitted using the Services. In addition, Licensee shall not, and shall not attempt to: (a) interfere with, modify or disable any features, functionality or security controls of the Services or the Developer Toolkit, (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Service or the Developer Toolkit, or (c) reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Services or the Developer Toolkit.
3.8 Licensee acknowledges that Licensee is solely responsible, and that Nureva has no responsibility or liability of any kind, for the content, development, operation, support or maintenance of Applications. Without limiting the foregoing, Licensee will be solely responsible for (a) the technical installation and operation of its Applications; (b) creating and displaying information and content on, through or within its Applications; (c) ensuring that its Applications do not violate or infringe the Intellectual Property Rights of any third party; (d) ensuring that Applications are not offensive, profane, obscene, libelous or otherwise illegal; (e) ensuring that its Applications do not contain or introduce Malicious Software into a Service, a Developer Toolkit, any Service Data or other data stored or transmitted using the Service; and (f) ensuring that its Applications are not designed to or utilized for the purpose of spamming any Nureva customers or End-Users.
3.9 Licensee will respect and comply with the technical and policy-implemented limitations of the Developer Toolkit and the restrictions of this Agreement in designing and implementing Applications. Without limiting the foregoing, Licensee shall not violate any explicit rate limitations on calling or otherwise utilizing a Developer Toolkit.
3.10 Licensee shall not make any modifications to any Service Data, other than as reasonably necessary to modify the formatting of such Service Data in order to display it in a manner appropriate for the pertinent Applications.
4.2 Licensee represents, warrants and covenants that (a) its Applications and Licensee trademarks, the use of such Applications by its users, and the activities with respect to such Applications and Licensee Marks undertaken by Nureva in accordance with the terms of this Agreement, do not and will not violate, misappropriate or infringe upon the Intellectual Property Rights of any third party; (b) Licensee will comply with all applicable local, state, national and international laws and regulations, including, without limitation, all applicable export control laws, and maintain all licenses, permits and other permissions necessary to develop and implement its Applications; (c) its Applications do not and will not contain or introduce any Malicious Software into the Service, the Developer Toolkit, any Service Data, or other data stored or transmitted using the Service; (d) its Applications are not designed to or utilized for the purpose of spamming any Subscribers or End-Users; and (e) it has all right, power and authority to grant the licenses granted to Nureva herein.
Subject to the limited licenses expressly provided in this Agreement, nothing in this Agreement transfers or assigns to Nureva any of Licensee’s Intellectual Property Rights in its Applications or Licensee’s Marks or other technology, and nothing in this Agreement transfers or assigns to Licensee any of Nureva’s Intellectual Property Rights in the Services, the Developer Toolkit, the Marks, or Nureva’s other technology or the respective Intellectual Property Rights in any Service Data of Nureva or its customers or End-Users.
This Agreement does not entitle Licensee to any support for the Services or the Developer Toolkit, unless Licensee makes separate arrangements with Nureva for such support. Licensee is solely responsible for providing all support and technical assistance to End-Users of its Applications and Subscribers who access, deploy and/or purchase its Applications. Licensee acknowledges and agrees that Nureva has no obligation to provide support or technical assistance to the users of Applications and Licensee shall not represent to any such users that Nureva is available to provide such support. Licensee agrees to use commercially reasonable efforts to provide reasonable support to users of its Applications.
Licensee may from time to time, gain access to Confidential Information. Licensee may use Confidential Information only to the extent necessary to exercise its rights under this Agreement. Subject to the express permissions set forth herein, Licensee may not disclose Confidential Information to a third party without the prior express consent of Nureva provided in writing or by email. Without limiting any other obligation of Licensee under this Agreement, Licensee agrees that it will protect Confidential Information from unauthorized use, access or disclosure in the same manner that Licensee would use to protect its own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.
ALL ASPECTS OF THE SERVICES AND THE DEVELOPER TOOLKIT, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND NUREVA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT NUREVA DOES NOT WARRANT THAT THE SERVICE OR DEVELOPER TOOLKIT WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM NUREVA OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THIS AGREEMENT, THE DEVELOPER TOOLKIT OR THE SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NUREVA’s AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY ARISING OUT THIS AGREEMENT, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE FIRST EVENT OR OCCURRENCE GIVING RISE TO THE CLAIM.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Licensee. IN THESE JURISDICTIONS, NUREVA’s LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. The limitations set forth in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Licensee will indemnify and hold Nureva harmless against any claim brought by a third party against Nureva arising from or related to any breach of an obligation, representation, warranty, covenant or other provision of this Agreement by Licensee or any matter which Licensee has expressly agreed to be responsible pursuant to this Agreement.
This Agreement shall commence on the Effective Date and will remain in effect until terminated pursuant to this Section 12 (the, “Term”). Either party may terminate this Agreement at any time, for any reason, or for no reason including, but not limited to, if Licensee violates any provision of this Agreement. Any termination of this Agreement shall also terminate the licenses granted to Licensee hereunder. Upon termination of this Agreement for any reason, Licensee shall cease using, and either return to Nureva or destroy and remove from all computers, hard drives, networks and other storage media, all copies of any materials licensed pursuant to this Agreement and any Confidential Information in Licensee’s possession, and shall certify to Nureva that such actions have occurred. Sections 2.3, 4, 5, 6, and 8-17 shall survive termination of this Agreement.
13.1 Licensee may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Licensee’s rights under this Agreement or delegate performance of Licensee’s duties under this Agreement without Nureva’s prior consent, which consent will not be unreasonably withheld. Nureva may, without Licensee’s consent, assign this Agreement to any Affiliate or in connection with any merger or change of control of Nureva or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
All notices to be provided by Nureva to Licensee under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by Licensee to Nureva; or (b) electronic mail to the electronic mail address provided for the Account owner related to Your subscription to the Service. Licensee must give notice to Nureva in writing by Courier or Mail to the following address: Nureva Inc., Attention: Vice President, Legal and General Counsel, 401 9th Ave SW, Calgary, Alberta, Canada, T2P 3C5. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, four (4) business days after being deposited in the mail or with a Courier as permitted above.
This Agreement shall be governed by the laws of the Province of Alberta, Canada, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in the courts of the Province of Alberta. You hereby expressly agree to submit to the exclusive personal jurisdiction of the courts of the Province of Alberta for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You or End Users.