MONNIT MINE API DEVELOPER AND TRIAL LICENSE AGREEMENT
This Monnit Mine API Developer and Trial License Agreement ("Agreement") is between Monnit Corporation ("Monnit ") and You governing your use of the Mine Software, including all application programming interfaces ("API(s)"), information, content, products, materials, and services made available to You by Monnit or third parties through the Mine Software (the "Mine Software"). "You" and "Your" means and refers to the person(s) or legal entity using the Mine Software or otherwise exercising rights under this Agreement. If You are entering into this Agreement on behalf of Your company, "You" or "Your" refers to your company as well.
Please read this Agreement carefully prior to submitting this form to download and use the Mine Software.
Monnit grants You a non-exclusive, non-transferable, revocable, restricted access right to use the Mine Software for the testing and development of Applications. As used herein, "Application" means one or more non-commercial, prototype software programs developed by You used in connection with the Mine Software, including any content delivered or made available through such non-commercial, prototype software programs. This License is conditioned upon Your compliance with the rules for usage of the Mine Software that are contained in this Agreement or that Monnit publishes on Monnit's Developer Site. Monnit reserves the right to discontinue, without prior notice, Your use of the Mine Software. This License excludes, without limitation, Your right to use the Mine Software for any other purpose than the non-commercial, prototype development and testing of Applications. You agree that You will not commercialize Your Application, including, but not limited to, charging a fee for Your Application, while you are developing and testing Your Application using the Mine Software.
As between Monnit and You, Monnit reserves and retains all right, title, and interest, including but not limited to all Intellectual Property Rights in the Mine Software, Monnit Marks and Monnit's wireless products (collectively, "Monnit IP"). You agree to cooperate with Monnit to maintain Monnit's ownership of the Monnit IP and, to the extent that You become aware of any claims relating to the Monnit IP, You will use reasonable efforts to promptly provide notice of any such claims to Monnit. No title to or ownership of any of these Intellectual Property Rights is transferred to You or any other Person under this Agreement. As between the parties, Monnit retains all Intellectual Property Rights and all other right, title, and interest in and to the Monnit IP. You obtain no right to use Monnit Intellectual Property Rights beyond the term of this Agreement.
2. USE LIMITATIONS
A) Monnit provides no service level commitments, nor quality of service standards. Monnit is not obligated to provide any maintenance, technical, nor any other support for the Mine Software or the APIs that are being used.
B) Updates - Monnit may extend, enhance, or otherwise modify the Mine Software and APIs provided hereunder at any time without notice. If Updates are made available by Monnit, the terms of this Agreement will govern such Updates, unless the Update is accompanied by a separate license in which case the terms of that license will govern. You acknowledge that Monnit has no express or implied obligation to announce or make available any Updates to the Mine Software or APIs to anyone in the future. Should an Update be made available, it may have APIs, features, services or functionality that are different from those found under this Agreement.
3. YOUR OBLIGATIONS
A) Modifications - You shall not (a) make derivative works of, reverse engineer, reverse compile or disassemble the APIs, (b) use the Mine Software in any unauthorized manner, including any way that will: (i) infringe on any Monnit or third party's copyright, patent, trademark, trade secret or other property rights or rights of publicity or privacy, or (ii) violate any applicable law, statute, ordinance or regulation. You shall not rent, lease, loan, resell for profit, use, copy, modify, distribute, display, or provide the Mine Software in any form.
B) Unsuitable Content -Your Applications used in connection with the Mine Software may not contain Unsuitable Content.
C) Harmful code - Your Applications used in connection with the Mine Software may not contain any malware, malicious or harmful code, program, or other internal component (e.g. computer viruses, Trojan horses, "backdoors") which could damage, destroy, or adversely affect any part of the Mine Software, or other Monnit or third party software, firmware, hardware, data, systems, or services.
D) Free and Open Source Mine Software ("FOSS") - If Your Application includes any FOSS, You must comply with all applicable FOSS licensing terms. You also agree not to use any FOSS in the development of Your Application in such a way that would cause Monnit to be subject to any FOSS licensing terms or obligations.
4. PUBLISHING YOUR APPLICATION
Before publishing Your Application or making it commercially available, You agree to establish a Reseller Account with Monnit and purchase a Monnit Mine Reseller License. You may not provide Your Application to any other person or party without an active Reseller License at which point the Reseller License Agreement supersedes this Agreement.
5. REPRESENTATIONS AND WARRANTIES
You represent and warrant that:
A) You are of the legal age of majority in the jurisdiction in which You reside (at least 18 years of age) and have the right and authority to enter into this Agreement on Your own behalf; that You are a Developer; and if You are entering into this Agreement on behalf of Your company, that You have the right and authority to legally bind Your company to the terms and obligations of this Agreement;
B) You will be solely responsible for all costs, expenses, losses and liabilities incurred, and activities undertaken by You in connection with the Mine Software, Your Applications and Your related development efforts, including, but not limited to, any network and server equipment, Internet service(s), or any other hardware, software or services used by You;
C) You will not, through use of the Mine Software or otherwise, create any Application or other program that would disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Mine Software, Monnit's network, any Monnit Services or Products or other Monnit software or technology, or enable others to do so; and,
D) You are not presently the subject of, nor the proponent of, any claim that would have a Material adverse effect on this Agreement or Your use of the Mine Software.
You affirm and agree that You will not assert against Monnit, its affiliates or authorized representatives any claim for infringement or misappropriation of any rights protectable under intellectual property law anywhere throughout the world, including rights protectable under patent, copyright, trade secret or trademark, in any way relating to the Mine Software.
7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
MONNIT MAKES NO WARRANTIES OR REPRESENTATIONS CONCERNING AVAILABILITY OR SECURITY OF THE SERVICE, NOR THAT YOUR APPLICATIONS ARE FIT FOR BEING TESTED OR OTHERWISE VERIFIED IN THE SERVICE. MONNIT INFORMS AND YOU ACCEPT THAT AVAILABILITY OF THE SERVICE CAN BE NON-EXISTING OR RESTRICTED DUE TO LACK OF CAPACITY, DATA TRANSMISSION ERRORS, INTERRUPTION OF POWER AND OTHER CIRCUMSTANCES BEYOND MONNIT'S CONTROL. FURTHER YOU AGREE THAT MONNIT SHALL HAVE NO RESPONSIBILITY, NOR LIABILITY FOR THE NON-AVAILABILITY OF THE SERVICE. MONNIT SHALL ATTEMPT TO POST, BUT HAS NO OBLIGATION TO DO SO, WHEN THE SERVICE MAY BE UNAVAILABLE FOR MAINTENANCE, REPAIRS, OR OTHER REASONS.
MONNIT'S SOLE RESPONSIBILITY IN THE CASE OF MALFUNCTIONS IS LIMITED TO USING REASONABLE EFFORTS TO CORRECT ANY MALFUNCTION. YOU SHALL HAVE NO OTHER REMEDY. IF IN SPITE OF MONNIT USING ALL REASONABLE EFFORTS, IT PROVES DIFFICULT OR NOT COMMERCIALLY SUITABLE IN OUR SOLE OPINION TO CORRECT THE MALFUNCTION, THE MALFUNCTION SHALL NOT BE CORRECTED. MONNIT SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY MALFUNCTION WHETHER CAUSED BY MONNIT OR CAUSED BY YOU AND/OR ANY THIRD PARTY. THE REMEDIES SET FORTH ABOVE CONSTITUTE THE ONLY AND EXCLUSIVE REMEDIES AVAILABLE TO YOU FOR MALFUNCTIONS.
YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SERVICE. THE SERVICE IS PROVIDED "AS IS" AND MONNIT DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THE WARRANTIES OF TITLE OR NON-INFRINGEMENT. YOU ASSUME ALL RISK AS TO THE SUITABILITY, QUALITY, AND PERFORMANCE OF THE SERVICE.
IN NO EVENT SHALL MONNIT OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE FOR (A) ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF MONNIT OR ANY OF ITS AUTHORIZED REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (B) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, INTERRUPTIONS, INCOMPATIBILITY WITH EQUIPMENT, SYSTEMS, VIRUSES, OR OTHER INACCURACIES IN THE SERVICE, OR (C) ANY CLAIM BY ANY THIRD PARTY. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IN SUCH STATES, MONNIT'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, MONNIT'S AGGREGATE LIABILITY UNDER THIS AGREEMENT IS LIMITED TO A MAXIMUM AMOUNT EQUAL TO $100.00.
YOU ACKNOWLEDGE THAT THE PROVISIONS OF THIS AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN YOU AND MONNIT OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS ASSOCIATED WITH THIS AGREEMENT AND REFLECT THAT MONNIT IS NOT CHARGING YOU FOR THE LICENSES GRANTED UNDER THIS AGREEMENT. THE REMEDY LIMITATIONS, AND THE LIMITATIONS OF LIABILITY, ARE SEPARATELY INTENDED TO LIMIT THE FORMS OF RELIEF AVAILABLE TO YOU.
You agree to indemnify, defend and hold Monnit, its employees, agents, consultants, subsidiaries, affiliates, suppliers and licensors (each an "Indemnified Party") harmless from and against any and all claims, costs, losses, damages, liabilities, judgments and expenses (including reasonable fees of attorneys and other professionals) which Monnit and/or any Indemnified Party may incur and that arise from or are related to: (i) Your use of the Mine Software; (ii) any infringement of intellectual property, patents, trademarks, copyrights, or trademarks belonging to any Third Party; or (iii) Your breach of this Agreement.
9. TERM AND TERMINATION
This Agreement and Your rights hereunder will terminate immediately upon the earlier of the following: (a) without notice, if You fail to comply with any of Your obligations under this Agreement, (b) the date that You are notified by Monnit that you are no longer authorized to use the Mine Software, or (c) the date that You terminate Your use of the Mine Software or otherwise notify Monnit of your termination of this Agreement.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Utah, except conflict of law rules. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Suit to enforce this Agreement or any provision thereof will be brought exclusively in the state or federal courts located in Salt Lake City, Utah.
If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction, then: (a) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable will be unaffected; (b) the effect of the ruling will be limited to the jurisdiction of the court or other government body making the ruling; (c) the provision(s) held wholly or partly invalid or unenforceable will be deemed amended, and the court or other government body or Monnit is authorized to reform the provision(s), to the minimum extent necessary to render them valid and enforceable in conformity with the Parties' intent as manifested herein; and (d) if the ruling, and/or the controlling principle of law or equity leading to the ruling, is subsequently overruled, modified, or amended by legislative, judicial, or administrative action, then the provision(s) in question as originally set forth in this Agreement will be deemed valid and enforceable to the maximum extent permitted by the new controlling principle of law or equity.
You shall refrain from marketing and/or giving publicity that could give the impression that the Applications tested in the Mine Software are approved or certified, or qualitatively or functionally accepted or approved by Monnit. You shall not make any public statement regarding this Agreement, the terms of this Agreement, or any specific aspect thereof without Monnit's prior written approval, which may be withheld in Monnit's sole discretion. In order to preserve the value of Monnit's name and/or any trademarks, service marks, trade names, or trade dress adopted and/or used by Monnit from time to time, You shall not make any use of any of the same for any reason except solely as may be expressly authorized in writing by Monnit.
13. CONFIDENTIAL INFORMATION
You agree that information Monnit discloses to You under this Agreement, including but not limited to, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, tracings, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, marketing plans, and other technical, financial or business information (individually and collectively, "Information") shall be deemed to be confidential and proprietary. You agree to hold such Information in confidence with the same degree of care with which You protect Your own confidential or proprietary Information, but no less than reasonably prudent care; use the Information only for the purpose of this Agreement; not copy, distribute, or otherwise use such Information or knowingly allow anyone else to copy, distribute, or otherwise use such Information, and any and all copies shall bear the same notices or legends, if any, as the originals; and upon request, promptly return to Monnit all Information that is in tangible form. As to Information that was disclosed in or is stored in intangible form, including, but not limited to electronic mail or other electronic communication, upon request by Monnit, You shall certify in writing within five (5) business days to Monnit that all such Information has been destroyed or, if the Information was recorded on an erasable storage medium, that You have used reasonable efforts to erase all such intangible Information.
No Confidential Disclosures by You. The Parties do not intend that You will disclose to Monnit, and agree that You will refrain from disclosing to Monnit, any information that You regard as proprietary. You warrant that all information disclosed to Monnit by You is or will be free of any obligation of confidence. Monnit works with many application and software developers and some of their products may be similar to or compete with Your Applications. Monnit may also be developing its own similar or competing applications and products or may decide to do so in the future. To avoid potential misunderstandings, Monnit cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that You may provide in connection with this Agreement, including information about Your Application and metadata (such disclosures will be referred to as "Developer Disclosures"). You agree that any such Developer Disclosures will be non-confidential. Monnit will be free to use and disclose any Developer Disclosures on an unrestricted basis without notifying or compensating You. You release Monnit from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any Developer Disclosures. Any physical materials You submit to Monnit will become Monnit property and Monnit will have no obligation to return those materials to You or to certify their destruction.
Nothing in this Agreement will impair Monnit's right to develop, acquire, license, market, promote, or distribute products or technologies that perform the same or similar functions as, or otherwise compete with, Your Applications or any other products or technologies that You may develop, produce, market, or distribute.
14. INDEPENDENT PARTIES
You and Monnit are independent contractors. No partnership or joint venture is intended to be created by this Agreement, nor any principal-agent or employer-employee relationship. You shall not attempt to assert, the authority to make commitments for or to bind Monnit to any obligation. Although this Agreement contains covenants with respect to Confidential/Proprietary Information, You and Monnit disclaim any other intent to create a confidential or fiduciary relationship.
15. NO WAIVER
The failure of either Party (You or Monnit) at any time to require performance by the other Party of any provision of this Agreement shall in no way affect the right of such Party to require performance of that provision. Any waiver by either Party of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself or a waiver of any right under this Agreement.
16. INJUNCTIVE RELIEF
Any violation by You of this Agreement shall give the Monnit the right to a court-ordered injunction or other appropriate order to specifically enforce those covenants. This is in addition to any remedies Monnit may have at law. A breach of any of Your Obligations or the covenants under this Agreement is a breach of the Licenses granted by this Agreement.
Under no circumstances will this Agreement be construed or interpreted as an exclusive dealing agreement by either party. Nothing in this Agreement will be construed as to restrict either party from entering into any agreement with any other party, even if similar to or competitive with the transactions contemplated hereunder.
You will not export or re-export directly or indirectly (including via remote access) any part of the Mine Software (including any Confidential/Proprietary Information) to any country for which a validated license is required for such export or re-export under the Export Laws without first obtaining such a validated license.
19. FORCE MAJEURE
Monnit shall not be responsible for failures of its obligations under this Agreement for events beyond its reasonable control, including, but not limited to, natural disasters, epidemics, strikes, labor difficulties, severe weather conditions, regulatory or government acts, or delay of suppliers or contractors.
You consent to receive and review notices in relation to using the Mine Software and agree that any such notices will satisfy any legal communication requirements.
21. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the You and Monnit concerning the subject matter thereof. No prior or contemporaneous representations, inducements, promises, or agreements, oral or otherwise, between You and Monnit with reference thereto will be of any force or effect. You represent and warrant that, in entering into and performing Your obligations under this Agreement, You do not and will not rely on any promise, inducement, or representation allegedly made by or on behalf of Monnit with respect to the subject matter hereof, nor on any course of dealings or custom and usage in the trade, except as such promise, inducement, or representation may be expressly set forth herein. This Agreement may be modified only: (a) by a written amendment signed by both parties, or (b) to the extent expressly permitted by this Agreement (for example, by Monnit by written or email notice to You).