2.Licensee must not have a current or proposed program that is competitive with EVRYTHNG products or services. If Licensee intends at any time to institute such a program, Licensee will promptly inform EVRYTHNG, will not use in that program (whether for advice, review or otherwise) any personnel who have had access to any part of the API, and will not use any part of the API or any related intellectual property in connection with that program.
3.Licensee will not disclose (or allow access to) the API (or any information derived from it) to any third party and will limit access to the API (and any derived information) to employees of Licensee who are developing the App. In support of this obligation, Licensee will apply at least the same security as it uses to protect its own most confidential information. Licensee will not reverse engineer any aspect of the API or authorize or encourage anyone else to do so.
4.Licensee will not block, disable, hide or limit in any way the ability of any device (whether or not it includes the App) to access the Service or any portion or functionality of or enabled by the Service.
5.Further Licensee will not modify, extend, subset or superset the API to any extent. Licensee understands that EVRYTHNG may cease support of old versions or releases of the API.
6.At Licensee’s option, subject to EVRYTHNG’s consent, Apps may be branded with EVRYTHNG specified trademarks in accordance with EVRYTHNG’s trademark usage guidelines. EVRYTHNG will have the right to perform quality assurance inspections of each App and to withhold rights to use such trademarks if the quality is not satisfactory to EVRYTHNG in its sole discretion.
7.Licensee hereby grants EVRYTHNG a nonexclusive, sublicensable, fully-paid, worldwide license to fully exercise and exploit all patent rights with respect to improvements or extensions created by or for Licensee that are relevant to the API or otherwise result from or are enabled by access to the API. For clarity, Licensee is not required to disclose any such patent or patent rights to EVRYTHNG.
8.At some point it the future, EVRYTHNG may develop an SDK approach to enabling Licensees to build Apps; at that point Licensee’s access to and use of the API will become limited to that SDK.
9.EVRYTHNG PROVIDES THE API “AS IS” AND WITHOUT WARRANTY OF ANY KIND, AND HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, AND NON-INFRINGEMENT. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO LICENSEE.
10.LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL EVRYTHNG OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE SOFTWARE. EVRYTHNG’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO $100. THE FOREGOING WILL NOT APPLY TO DAMAGES FOR BODILY INJURY THAT, UNDER APPLICABLE LAW, CANNOT BE SO LIMITED. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF COMPANY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSION MAY NOT APPLY TO LICENSEE.
12.This Agreement represents the complete agreement concerning the subject matter hereof between the parties and supersedes all prior agreements and representations between them. This Agreement may be amended only by a writing executed by both parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of EVRYTHNG to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit EVRYTHNG’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without EVRYTHNG’s consent and any action or conduct in violation of the foregoing shall be void and without effect. EVRYTHNG expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under the laws of England and Wales. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the United Kingdom; Licensee hereby agrees to service of process in accordance with the rules of such courts. The party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.