ANY USE, INSTALLATION, DOWNLOAD, OR INTEGRATION OF THE APPLICATION OR RELATED SOFTWARE OR SERVICES CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. THE SOFTWARE IS NEVER SOLD. THE SOFTWARE MAY BE LICENSED ONLY PURSUANT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.1 “API” means the Application Protocol Interface installed on iKydz server(s), in its current or in its future form, which allows the Application and connected devices to communicate with, post information to, and display information from IKydz servers.
1.2 “Application” means the IKydz application, designed for installation onto mobile devices and tablets, in its current or future form.
1.3 “iKydz unit” means the internet gateway product(s) sold by IKydz, its affiliates or business partners, or their successors, with which the Software was designed to be used, including those products developed in the future. IKydz unit shall have the same meaning in singular as in plural.
1.4 “Licensee” means you or, if you are accepting on behalf of an entity, then the entity and any affiliates exercising rights under, and complying with all of the terms of, this Agreement.
1.4 “Software” shall mean: the software installed with the IKydz unit in its current or in its future form made available by IKydz to Licensee in binary code form under this Agreement; any services or administration interfaces which enable Licensee to interact with the API from an application dashboard, whether web-based or reduced to an application on a mobile device; and any application, software, firmware, or binary code, in its current or in its future form, designed to interact with the IKydz unit or the API.
LICENSE GRANT; OWNERSHIP
2.1 License Grants. Subject to the terms and conditions of this Agreement, IKydz hereby grants to Licensee a non-exclusive, non-transferable, limited license (i) to install, administer, and operate the Application on a mobile device or multiple mobile devices; (ii) to install and integrate the Software in conjunction with the Licensee’s home network, Licensee’s computer or mobile devices, and other devices designed to access the IKydz unit or the IKydz servers; and (iii) to use the Software in complete, unmodified form on any such home network, computer, mobile device, or other device designed to interact with the IKydz unit.
2.2. Restriction on Modification. Licensee may not modify the Application for use in any way other than as described in Section 2.1. Any such modification will void any warranties, whether express or implied, on the Application or its Software. If and to the extent that the Software is designed to be compliant with any published communications standard (including, without limitation, Bluetooth SIG, IEEE, and ITU standards), Licensee may not make any modifications to the Software that would cause the Software or the accompanying Application to be incompatible with such standard.
2.3. Restriction on Distribution. Licensee shall not distribute the Software, nor hold itself out as a distributor, author, or creator of the Software, nor lead others to believe through implicit or explicit means that it has the right to sublicense or otherwise distribute the Software. Licensee may not loan, lease, rent, distribute, resell, or otherwise distribute the Software other than as provided by the terms of this Agreement.
2.4. Proprietary Notices. Licensee shall not remove, efface or obscure any copyright or trademark notices from the Software. Licensee acknowledges that any symbols, trademarks, tradenames, and service marks adopted by iKydz to identify the Software belong to iKydz and that Licensee shall have no rights therein.
2.5. Ownership. iKydz shall retain all right, title and interest, including all intellectual property rights, in and to (i) the Application; and (ii) the Software. Licensee hereby acknowledges and agrees that it has no rights in the Application apart from those granted in this Agreement. Licensee hereby covenants that it will not assert any claim that the Software provided by IKydz hereunder and used or accessed by Licensee from time to time, regardless of whether created by or for IKydz, including any derivative works thereof, infringes any intellectual property right owned or controlled by Licensee.
2.6. No Other Rights Granted; Restrictions. Apart from the license rights expressly set forth in this Agreement, IKydz does not grant and Licensee does not receive any ownership right, title or interest nor any security interest or other interest in any intellectual property rights relating to the Application and the Software, nor in any copy of any part of the foregoing. Licensee shall not (i) use, license, sell or otherwise distribute the Application or Software except as provided in this Agreement, (ii) attempt to reverse engineer, decompile or disassemble any portion of the Application or Software; (iii) query the API in a manner which causes damage to iKydz servers, or interferes with the operation of the API for other users; (iv) attempt to utilize the API as a vector for scripts, worms, malware, or other intrusions into iKydz servers for any reason; (v) use the Application or Software for the purpose of directly competing with IKydz; or (vi) use the Application or Software or other material in violation of any applicable law or regulation, including but not limited to any regulatory agency, such as FCC, rules.
WARRANTY AND SUPPORT
3.1 Disclaimer of Warranties. BOTH THE APPLICATION AND THE SOFTWARE ARE OFFERED “AS IS.” TO THE EXTENT PERMITTED BY LAW, AND APART FROM THE LIMITED WARRANTY IN SECTION 3.1, IKYDZ GRANTS AND LICENSEE RECEIVES NO WARRANTIES OF ANY KIND, WHETHER ESTABLISHED BY STATUTE, COMMUNICATION OR CONDUCT WITH LICENSEE, OR OTHERWISE. IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT CONCERNING THE APPLICATION, THE SOFTWARE, OR ANY UPGRADES TO OR DOCUMENTATION FOR EITHER THE IKYDZ UNIT OR THE SOFTWARE, SHALL BE LIMITED IN DURATION TO THE DURATION OF THE LIMITED WARRANTY PROVIDED IN SECTION 3.1. WITHOUT LIMITATION OF THE ABOVE, IKYDZ GRANTS NO WARRANTY THAT THE SOFTWARE IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING ITS USE OR THE RESULTS THEREFROM INCLUDING, WITHOUT LIMITATION, ITS CORRECTNESS, ACCURACY OR RELIABILITY.
3.2. No Support. Nothing in this agreement shall obligate IKydz to provide any support for the Application or Software. IKydz may, but shall be under no obligation to, correct any defects in the Software and/or provide updates to licensees of the Software. Licensee shall make reasonable efforts to promptly report to IKydz any defects it finds in the Software, as an aid to creating improved revisions of the Software. IKydz shall have a worldwide, perpetual, royalty-free non-exclusive license to make use of any suggestions, comments or statements of Licensor in enhancing or correcting the Software and Licensor shall receive no compensation for their contribution.
3.3. Supported Uses. The Software and the Application with which it is used are limited in the systems and applications that are supported. IKydz is under no obligation to support, and does not license, unsupported uses of the Application for reasons other than those described in the Application’s documentation.
3.4. Permission to Access. Licensee understands and agrees that directly requesting support through any communication channel for the setup, continued use, or technical troubleshooting of their Application will also constitute express permission to allow IKydz or its duly authorized support representatives to access the licensee’s configuration files and other information stored on IKydz servers. IKydz requires such access in order to troubleshoot, debug, or optimize the setup or use of Licensee’s Application. Licensee may limit the level of access IKydz or its duly authorized support representatives have to Licensee’s server-side information only by explicitly stating at the moment of the support request the specific limitations they wish to impose with regard to the logs, diagnostics, configurations, software processes, or other server-side information. IKydz or its duly authorized support representatives will only access such information under the conditions set by Licensee. Whether or not Licensee sets any limitations on remote access, IKydz will discontinue access upon resolution of the support request.
TERM AND TERMINATION
4.1. Term, Termination. This Agreement shall continue in full force and effect for as long as Licensee uses one or more Application instances, the Software, or any networked or stand-alone application designed to interact with the Application, a IKydz Device, or the Software. This Agreement will automatically terminate if Licensee fails to comply with any of the terms and conditions hereof, subject to a 15-day notice and cure period in the absence of wilful misconduct. In the event that IKydz could not reasonably expected to discover Licensee’s noncompliance, Licensee agrees and acknowledges that its noncompliance will result in automatic termination with no such notice and cure period.
4.2. Effect of Termination. Upon any termination of this Agreement, the rights and licenses granted to Licensee under this Agreement shall immediately terminate.
4.3. Survival. The rights and obligations under this Agreement which by their nature should survive termination, including but not limited to those sections regarding Confidentiality, Limitation of Liability, and Indemnity, will remain in effect after expiration or termination of this Agreement.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL IKYDZ OR ANY OF IKYDZ LICENSORS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL IKYDZ’S LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY LICENSEE FOR THE APPLICATION UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Licensee agrees to defend and indemnify IKydz and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys’ fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from the unauthorized or uncontemplated use or distribution of the Application or the Software by the Licensee.
7.1. Export Regulations. LICENSEE UNDERSTANDS AND AGREES THAT THE APPLICATION AND THE SOFTWARE IS SUBJECT TO EU STATES AND OTHER APPLICABLE EXPORT-RELATED LAWS AND REGULATIONS AND THAT LICENSEE MAY NOT EXPORT, RE-EXPORT OR TRANSFER THE APPLICATION OR THE SOFTWARE OR ANY DIRECT PRODUCT OF THE SOFTWARE EXCEPT AS PERMITTED UNDER THOSE LAWS.
7.2. Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided, however that Licensee may not assign this Agreement or any rights or obligation hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of IKydz, and any such attempted assignment shall be void. Notwithstanding the foregoing, Licensee may assign this Agreement to a successor to all or substantially all of its business or assets to which this Agreement relates that will not use the rights hereunder in direct competition with of IKydz.
7.3. Governing Law; This Agreement shall be governed by the laws of the Republic of Ireland without regard to any conflict-of-laws rules, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
7.4. Severability. All terms and provisions of this Agreement shall, if possible, be construed in a manner which makes them valid, but in the event any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected if the illegal or unenforceable provision does not materially affect the intent of this Agreement. If the illegal or unenforceable provision materially affects the intent of the parties to this Agreement, this Agreement shall become terminated.
7.5. Equitable Relief. Licensee hereby acknowledges that its breach of this Agreement would cause irreparable harm and significant injury to IKydz that may be difficult to ascertain and that a remedy at law would be inadequate. Accordingly, Licensee agrees that IKydz shall have the right to seek and obtain immediate injunctive relief to enforce obligations under the Agreement in addition to any other rights and remedies it may have.
7.6. Waiver. The waiver of, or failure to enforce, any breach or default hereunder shall not constitute the waiver of any other or subsequent breach or default.
7.7. Updates to this License. IKydz reserves the right to alter or amend this Agreement at any time, in its sole discretion. IKydz shall provide notice of any changes 30 days prior to such change, by email or mail to Licensee or by posting a new version of this Agreement on its website at http://www.ikydz.com. Licensee’s continued use of the Software subsequent to such revision shall be deemed acceptance of the amended license and Licensee’s sole alternative shall be to terminate this Agreement and cease use of the Software.
7.8. Updates to this License. Any notices required or permitted by this Agreement shall be made in writing and may be made (i) by email to the last provided email address for Licensee, in the case of Licensee, or to firstname.lastname@example.org , in the case of IKydz; (ii) by posting on the IKydz webpage at http://www.ikydz.com ; or (iii) by mail to the principal office of the parties, or to any address previously provided by a party to the other party.
7.9. Entire Agreement. This Agreement sets forth the entire Agreement between the parties and supersedes any and all prior proposals, agreements and representations between them, whether written or oral concerning the Software. This Agreement may be changed only by mutual agreement of the parties in writing.