CISCO WIFI MX PLATFORM LICENSE AND HOSTING AGREEMENT
The following terms and conditions comprise the Cisco MX Platform License and Hosting Agreement (this "Agreement"), under which Cisco Spaces is licensed, and constitute a legal agreement between you and Cisco, Inc., a Delaware corporation (also referred to here in as "Cisco") and governs your use of the software, modules,components, recipes, interfaces, documents, content and other information provided by Cisco to you (the "Platform") and the hosting of your application by Cisco (the "Service").
1. Platform License Grant by Cisco
1.1 Subject to the terms of this Agreement, Cisco grants you (the "Customer") a limited, worldwide, royalty-free, non-sublicensable, non- assignable and non-exclusive license to use the Platform for the level of authorized use specified in a mutually executed order form (the "Order") form or on the Order accepted by Cisco from an authorized reseller on behalf of Customer, solely to develop mobile applications and sites (the "CApplications") to interact with the Platform (the "Limited Purpose") for the period of time set forth in the order (the "Term"). If you purchase from a reseller authorised by Cisco to sell licenses to the Platform ("Reseller"), the proof of authorization issued to Customer by Cisco or agreed to between Cisco and Customer on a Cisco Order form is evidence of your level of authorized use of the Platform.
1.2 You agree that Cisco and/or its licensors own and retain all legal right, title and interest in and to the Platform, including any Intellectual Property Rights that subsist in the Platform. "Intellectual Property Rights" means any and all rights under patent law, copyright law, trade secret law, trademark law, and any and all other proprietary rights. Cisco reserves all rights not expressly granted to you.
1.3 You may not copy, modify, adapt, redistribute, decompile, reverse engineer, disassemble, attempt to derive the source code, or create derivative works of the Platform or any part of the Platform.
1.4 You agree that the form and nature of the Platform may change without prior notice to you and that future versions of the Platform may be incompatible with applications developed on previous versions of the Platform. You agree that Cisco may stop (permanently or temporarily) providing the Platform (or any features within the Platform) to you or to users generally at Cisco's sole discretion.
1.5 Nothing in this Agreement gives you a right to use any of Cisco's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.
1.6 You agree that you will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Platform.
2. Your Use of the Platform
2.1 Cisco agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any Applications that you develop using the Platform, including any Intellectual Property Rights that subsist in those Applications.
2.2 You agree that your Applications and your use of the Platform shall comply with (a) the terms of this Agreement and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries).
2.3 You agree that you will not engage in any activity with the Platform, including the development of Application/s, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party including, but not limited to, Cisco or any mobile communications carrier.
2.4 You agree that you are solely responsible for (and that Cisco has no responsibility to you or to any third party for) any data, content, or resources that you create, transmit or display through the Platform and/ or Applications for the Platform, and for the consequences of your actions (including any loss or damage which Cisco may suffer) by doing so.
2.5 You agree that you are solely responsible for (and that Cisco has no responsibility to you or to any third party for) any breach of your obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, and for the consequences (including any loss or damage which Cisco or any third party may suffer) of any such breach.
2.6 You agree that you are responsible for maintaining the confidentiality of any developer credentials that may be issued to you by Cisco or which you may choose yourself and that you will be solely responsible for all Applications that are developed under your developer credentials.
3. Applications License Grant by You
3.1 For all Applications hosted by us, you grant to Cisco a nonexclusive, worldwide, and royalty-free license to: copy, perform, display, and use the Applications in connection with hosting the Applications on the Platform and to use the Applications to make improvements to the Platform.
3.2 You represent and warrant that you have all intellectual property rights, including all necessary patents, trademark, trade secret, copyright or other proprietary rights, in and to the Applications. If you use third-party materials, you represent and warrant that you have the right to distribute the third-party material in the Applications. You agree that you will not submit material to us that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including patent, privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to submit the material.
4. Hosting of Applications by Cisco
4.1 For each Application submitted by you that comply with the requirements set forth in the Documentation, Cisco agrees to host such Application on the Cisco platform subject to the terms and conditions of this Agreement. Cisco agrees to provide you with administrative access to Applications via an Internet Uniform Resource Locator (URL) together with one or more user IDs and passwords. Your administrative user credentials will allow you to access and use the Applications for purposes of managing the configuration, operation and maintenance of the Applications. You agree that administrative access to the Applications shall be restricted to your or your employer?s employees or consultants through the use of administrative user IDs and passwords. No direct access to server hardware, operating system, database management system or other system resources shall be provided.
4.2 You may enable your Application/s to issue to end users password protected user accounts in order for end users to access and use your Application/s.
4.3 You agree to be responsible for all user IDs and passwords issued by you and for all use of the Applications that are accessed using such User IDs and passwords. You are solely responsible for tracking all such user credentials (including administrative user credentials) and for ensuring the security and confidentiality of all user credentials. You acknowledge that you are fully responsible for all liabilities incurred through the use of any user credentials and that any transaction under a set of user credentials will be deemed to have been performed by you. You will immediately notify us of any unauthorized use of any user credentials or any other breach of security of which you become aware. We reserve the right to change issued passwords at any time. We will provide you prompt notice of any such password changes.
4.4 Cisco shall store all data created and managed by the Application/s; data shall be backed-up on a separate storage system at regular intervals. Cisco has implemented commercially reasonable technical and organizational measures designed to secure Application/s data from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use the Application/s data for improper purposes. You acknowledge that all Application/s data is stored, accessed and provided at your and your end user's own risk.
4.5 For all Applications submitted by you, the amount of storage space shall not exceed 20GB and the volume of monthly network data transfer shall not exceed 100 GB, unless otherwise agreed in writing by Cisco. Additional charges may apply if such data volumes are exceeded.
4.6 You agree that authorized Cisco support personnel may access your Application/s as required to diagnose and resolve technical issues.
5. Acceptable Use:
Cisco's Acceptable Use Policy is considered an integral part of the Order and is incorporated herein by reference.
6. Privacy and Information
6.1 In order to continually innovate and improve the Platform, Cisco may collect certain usage statistics from the Platform including but not limited to a unique identifier, associated IP address, and information on which tools and/or services in the Platform are being used and how they are being used. The data collected is examined in the aggregate to improve the Platform.
7. Fees:
Fees are based on authorized use for the Platform and Service as defined in the Order form agreed to between Customer and Cisco or on the Order form accepted by Cisco from an authorised reseller on behalf of Customer. Customer will pay all fees due for Platform and Service according to the prices and terms listed in the Order form. The prices listed in the Order form will remain firm during the initial term indicated in the Order form ("Initial Term"). At any time after the Initial Term, Cisco or an authorized reseller may change any of the fees it charges you for Platform or Service. Such changes in fees shall be effective at the beginning of the next month after 45 days advance written notice from Cisco to Customer of the change. All amounts payable hereunder to Cisco will be exclusive (i.e. net) of all sales, use, value-added, withholding and other taxes and duties, which are for Customer?s account. In the event Cisco pays any such amounts (other than its own income or capital taxes) and has not collected those amounts previously from Customer, Customer shall reimburse Cisco and they shall be added to the invoiced amounts as separate charges. If you purchased your license to the Platform and Service from a Reseller, you will pay the fees specified by the Reseller directly to the Reseller.
8. Payments:
When Customer acquires the Platform or Service from a reseller, Customer will pay the fees to the reseller. When Customer acquires the Platform or Service from Cisco, Customer will pay Cisco as specified in the Order form. Interest shall accrue on any delinquent amounts owed by Customer to Cisco at a rate equal to the lesser of i) one and one half (1.5%) per month or ii) the maximum legal interest rate chargeable per month. Cisco may, at any time, modify the payment terms or require a deposit or other acceptable form of security if it reasonably deems that Customer?s ability to pay is in doubt.
9. Proprietary Rights/Confidentiality:
Customer acknowledges that the Cisco technology, including the Platform and related trade secrets, marks and copyrights, and all Intellectual Property Rights therein and thereto are, and shall remain, the sole and exclusive property of Cisco as owner or licensee, and Customer is only receiving a limited right to use the Platform and Service. The Order form, including the fact of its existence, all business terms of the Order and other documentation provided to Customer under this Order is confidential and proprietary to Cisco ("Confidential Information"), and Customer agrees not to divulge any of the Confidential Information to third parties or make any usage of it other than as intended by Cisco. Cisco at its sole discretion may use the Customer name and logo on its website and print media for public relation and marketing purpose.
10. Indemnification:
Cisco hereby indemnifies and holds harmless Customer from and against any claims, actions, or demands alleging that the Platform, as provided by Cisco, infringes any U.S. patent, trademark or copyright of any third party.
11. Limitation of Liability:
CISCO WILL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF DATA OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES - EVEN IF CISCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CISCO?S LIABILITY ARISING OUT OF THIS ORDER EXCEED 100% OF THE MAXIMUM CUMULATIVE AMOUNT PAYABLE BY CUSTOMER FOR CISCO'S PLATFORM OR SERVICE PURSUANT TO ORDERS HEREUNDER DURING THE PRIOR 12 MONTHS.
12. Term and Termination:
a. The Initial Term of a Platform or Service Order shall be as indicated on the applicable Order to which the Cisco MX Platform License and Hosting Agreement is attached. Thereafter, unless one party provides written notice of at least sixty days prior to the end of the Initial Term or extended term of an intention to terminate the Order, the Order shall renew for additional period(s) equal to the duration of the Initial Term.
b. Except for termination for Cisco?s breach, in the event of early termination of the Platform or Service Order by Customer for default or any other reason, Customer shall pay Cisco as liquidated damages and not as a penalty any and all remaining unpaid fees as specified in the Order.
c. Either party may terminate the Order at any time if (a) a receiver is appointed for the other party or its property, (b) the other party makes an assignment of all or substantially all of its assets for the benefit of its creditors, (c) proceedings are commenced by or for the other party under any bankruptcy, insolvency, or debtor's relief law, (d) the other party liquidates or dissolves or attempts to do so, (e) the other party assigns or purports to assign the Service Order in breach of its provisions, or (f) the other party commits any other breach of a material obligation hereunder which it fails to cure within 20 days of written notice or immediately if it is by its nature incurable.
d. Furthermore, should Customer fail to pay any fee in a timely manner, Cisco shall provide written notice to Customer by email of this fact and, if Customer fails to make the payment within seven days of delivery of the notice, Cisco will be entitled to suspend its Services under all applicable Platform or Service Orders.
e. Cisco's failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any network facilities or servers (a "force majeure event"), shall not be deemed a breach of this Agreement. In the event that Cisco is not able to provide Service during a force majeure event, during this period Customer?s obligation to pay for the Services shall be suspended.
12. Term and Termination:
a. The Initial Term of a Platform or Service Order shall be as indicated on the applicable Order to which the Cisco MX Platform License and Hosting Agreement is attached. Thereafter, unless one party provides written notice of at least sixty days prior to the end of the Initial Term or extended term of an intention to terminate the Order, the Order shall renew for additional period(s) equal to the duration of the Initial Term.
b. Except for termination for Cisco?s breach, in the event of early termination of the Platform or Service Order by Customer for default or any other reason, Customer shall pay Cisco as liquidated damages and not as a penalty any and all remaining unpaid fees as specified in the Order.
c. Either party may terminate the Order at any time if (a) a receiver is appointed for the other party or its property, (b) the other party makes an assignment of all or substantially all of its assets for the benefit of its creditors, (c) proceedings are commenced by or for the other party under any bankruptcy, insolvency, or debtor's relief law, (d) the other party liquidates or dissolves or attempts to do so, (e) the other party assigns or purports to assign the Service Order in breach of its provisions, or (f) the other party commits any other breach of a material obligation hereunder which it fails to cure within 20 days of written notice or immediately if it is by its nature incurable.
d. Furthermore, should Customer fail to pay any fee in a timely manner, Cisco shall provide written notice to Customer by email of this fact and, if Customer fails to make the payment within seven days of delivery of the notice, Cisco will be entitled to suspend its Services under all applicable Platform or Service Orders.
e. Cisco's failure to perform any term or condition of this Agreement as a result of conditions beyond its control such as, but not limited to, war, strikes, fires, floods, acts of God, governmental restrictions, power failures, or damage or destruction of any network facilities or servers (a "force majeure event"), shall not be deemed a breach of this Agreement. In the event that Cisco is not able to provide Service during a force majeure event, during this period Customer?s obligation to pay for the Services shall be suspended.
13. Disclaimer:
14. General:
a. All notices or other communications required or permitted to be given hereunder shall be in writing and shall be deemed given when delivered in person, when received by mail, postage prepaid, registered or certified mail, return receipt requested, or when received by an internationally recognized courier service, and proof of delivery received by the noticing Party.
b. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California, USA without regard to conflicts of law principles. In the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be restated to reflect as nearly as possible the original intent of the Parties and the remainder of the provisions shall remain in full force and effect.
c. The Parties agree that any and all disputes arising out of or relating to this Agreement that are not resolved by their mutual agreement shall be initiated only and exclusively before the courts of San Francisco County, CA, with California substantive and procedural laws prevailing (except those that pertain to conflict of laws).
d. If any legal action is necessary to enforce the terms of the Agreement, the substantially prevailing party shall be entitled to reasonable legal fees and costs.
e. Customer acknowledges that Cisco, its affiliates, and third party providers own and retain all trademarks, service marks, trade names, logos, designations, copyrights and other proprietary rights in or associated with Cisco, its affiliates and their third party providers, respectively, as applicable, and agrees that it will not at any time during or after the Term assert or claim any interest in such proprietary rights or do anything that may adversely affect Cisco, its affiliates, or the third party providers (including, without limitation, any act or assistance to act which may infringe or lead to the infringement of any of the proprietary rights of Cisco, its affiliates or the third party providers). e. Customer may not assign this Agreement or any of its rights or obligations hereunder without the prior written consent of Cisco. Cisco shall have the right to assign this Agreement or any rights or obligations.
f. No failure to pursue any remedy resulting from a breach of this Agreement by the non-breaching Party shall be construed as a waiver of that breach by the non-breaching Party or as a waiver of any subsequent or other breach unless such waiver is in writing and signed by the non-breaching Party.
g. The provisions contained in Sections 8 (only to the extent that a payment obligation arising during the term of the Agreement has not been fully paid on or before termination of the Agreement), 6, 8, 9, 10 and 11 shall continue in force notwithstanding the termination of this Agreement.
h. Neither the course of conduct between the Parties nor trade practice shall act to modify any provision hereunder. The terms and conditions of the Agreement, including all attachments thereto, shall prevail notwithstanding any conflicting terms and conditions of any order form or other form for order solicitation submitted by Customer to Cisco. This Agreement and any addenda or order forms accepted hereunder constitute one and the same legally binding instrument and the entire agreement between Customer and Cisco, and supersede all prior oral or written agreements between the Parties with respect to the matters provided for herein. Unless otherwise provided in this Agreement, no modification, amendment or other change may be made to this Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both Parties.
i. The parties agree that, to the extent permitted by law, the United Nations Convention on the International Sale of Goods, or similar consumer protection legislation worldwide, do not apply in any respect to the Agreement.
j. This Agreement does not create an employer-employee relationship between Cisco and Customer, or any agency, joint venture or partnership. Customer shall have no authority to act for or to bind Cisco in any way, including to warrant or to execute agreements on behalf of Cisco or to represent that Cisco is in any way responsible for the acts or omissions of Customer. Customer and Cisco shall be independent contractors only. APP