These General Terms of Use (“General Terms”), along with any applicable license agreement you entered whether with KRAKEND or any of its VARs, will govern your use of and access to the Software, including without limitation applications, sample files, content files, scripts, instruction sets, customer support, and your installation of any software and related documentation. If you have agreed to our licensing terms, then these General Terms are considered part of such agreement. If you have entered into another agreement with us concerning specific services and/or the Software, then the terms of that agreement control where it conflicts with these General Terms.
1. Definitions
1.1 “Affiliate” means, for a Party, any other entity that controls, is controlled by, or under common control with, the Party. For the purposes of this definition, the term “control” means the direct or indirect power to direct the affairs of the other entity through at least 50% of the shares, voting rights, participation, or economic interest in this entity.
1.2 “Confidential Information” means: (i) the Software and other related information disclosed by KRAKEND to you; and (ii) the specific terms and pricing set forth in these General Terms, the LA, the VAR End Customer License Agreement, or any pricing information shared by the Parties about other products and/or services. Confidential Information also mean any information of any type in any form that (i) is disclosed to or observed or obtained by one Party from the other Party (or from a person the recipient knows or reasonably should assume has an obligation of confidence to the other Party) in the course of, or by virtue of, this General Terms or the Additional Documents, and (ii) either is designated as confidential or proprietary in writing at the time of such disclosure or within a reasonable time thereafter (or, if disclosure is made orally or by observation, is designated as confidential or proprietary orally by the person disclosing or allowing observation of the information) or is of a nature that the recipient knew or reasonably should have known, under the circumstances, would be regarded by the owner of the information as confidential or proprietary. Without limiting any other provisions of these General Terms or the Additional Documents, and whether or not otherwise meeting the criteria described herein, the Software and the content of these General Terms or the Additional Documents (other than the fact of its existence and the identities of the Parties hereto) shall be deemed conclusively to be Confidential Information. For purposes of this General Terms or the Additional Documents, however, the term “Confidential Information” shall not include any portion of the foregoing that (i) was in the recipient’s possession or knowledge at the time of disclosure and that was not acquired directly or indirectly from the other Party, (ii) was disclosed to the recipient by a third party not having an obligation of confidence of the information to any person of which the recipient knew or that, under the circumstances, the recipient reasonably should have assumed to exist, or (iii) is or, other than by the act or omission of the recipient, becomes a part of the public domain not under seal by a court of competent jurisdiction. A selection or combination of information will not meet any of the foregoing exceptions solely because some or all of its individual component parts are so excepted and will meet such exception(s) only if the selection or combination itself is so excepted. In the event of any ambiguity as to whether information is Confidential Information, the foregoing shall be interpreted strictly and there shall be a rebuttable presumption that such information is Confidential Information
1.3 “Device” means computers, laptops, and any other form of hardware owned by and/or property of the End Customer and used by authorized End Users for running or deploying the KRAKEND Software.
1.4 “Effective Date” means (i) the date when the Order Form is signed by duly authorized representatives of both parties, (ii) the date in which the license was acquired through our available marketplaces, and/or (iii) in the event of a VAR End Customer License Agreement, the effective date of signature of such agreement.
1.5 “End User” means the individual final user who is authorized by End Customer to use the Software or in which Devices the Software will run, for whom the License has been provisioned, or the use of the Software is contemplated by the Subscription Terms. End Users may include, for example, employees, consultants, contractors and agents of End Customer.
1.6 “Enterprise Documentation” means the technical usage and Software descriptions, characteristics, technical specifications and functionalities (the “Technical Specifications and Functionalities”) published by KRAKEND on https://www.krakend.io/docs/enterprise/overview/ which may be updated from time to time.
1.7 “Instances” means the production servers and/or instances specified in each Subscription Plan where Software can be licensed.
1.8 “Intellectual Property Rights” or “IP” means (a) patents, patent applications, patent disclosures and all related continuation, continuation-in-part, divisional, reissue, reexamination, utility model, certificate of invention and design patents, registrations and applications for registrations; (b) trademarks, service marks, trade dress, Internet domain names, logos, trade names and corporate names and registrations and applications for registration thereof; (c) copyrights and registrations and applications for registration thereof; (d) mask works and registrations and applications for registration thereof; (e) computer software, data and documentation; (f) inventions, trade secrets and confidential business information, whether patentable or nonpatentable and whether or not reduced to practice, know-how, manufacturing and product processes and techniques, research and development information, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information; and (g) copies and tangible embodiments thereof; and any other registered or unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any other intellectual property rights and all similar or equivalent rights or forms of protection, in any part of the world.
1.9 “KRAKEND”, “Licensor”, “us”, “our”, “we”, means KRAKEND, S.L.U a Spanish company with its registered office at Plaça Universitat 3, 6º, 08007, Barcelona, with ID ES B06933832, registered in the Barcelona Commercial Registry. KRAKEND is the Licensor of the Software, granting the rights to use and distribute the Software under this General Terms t, the LA or MLA, and the VAR Reseller Agreement.
1.10 “KRAKEND Marks” means KRAKEND’ trademarks, trade names, service marks, and service names. As described in EXHIBIT A.
1.11 “License Agreement” or “LA” means the Software Agreement entered to grant a KRAKEND license (“KRAKEND License” or the “License”) permitting the End Customer to use the Software in its own business activities, not for distribution, resale or offering to third parties. If the End Customer acquires the KRAKEND License through a marketplace platform, then the applicable LA is referred to as “Marketplace License Agreement” or “Marketplace LA”. If the End Customer acquires the KRAKEND License through a VAR, then the applicable LA is referred to as “VAR End Customer License Agreement”.
1.12 “Licensee” or “End Customer” means you, if you are a Third-party customer or licensee of the Software that have entered into an LA directly with KRAKEND or directly or indirectly by a VAR Reseller, for the use and access to the Software as indicated in the corresponding VAR End Customer License Agreement; or the End Customer you have distributed the Software to, if you are a VAR and have entered into a VAR Reseller Agreement with KRAKEND. Therefore, for clarity purposes, the company or organization that acquires a KRAKEND License for its own use and not for distribution, resell or offering services to third parties.
1.13 “Licensed Materials” means the Software and the Enterprise Documentation.
1.14 “Order” and/or “Order Form” means ordering document used to transact the Software via the Marketplace, the License Agreement or the VAR End Customer License Agreement.
1.15 “Professional Services” and “Support and Maintenance Services” means the Services provided by KRAKEND or, depending on the VAR Agreement, by the VAR to End Customer along with the Licensed Materials.
1.16 “Software” means KRAKEND computer software and service products, delivered as a On-Prem service in object code form, and related documentation specified in Enterprise Documentation, including any error corrections and updates that KRAKEND provides to you under these General Terms, the LA, and the VAR End Customer License Agreement.
1.17 “Subscription Plan(s)” means KRAKEND Subscription Plans emailed to you during the sales process for KRAKEND Software licensing, depending on the Territory.
1.18 “Territory” means the Territory where you have the right to use the Software, subject to Section 16 (Trade Sanctions and Export Control Compliance) of these General Terms.
1.19 “Use” means to copy, download, install, run, access, display, use or otherwise interact with.
1.20 “VAR End Customer License” means the License of KRAKEND Software you have acquired through a VAR Reseller. For the purposes of this General Terms and the Additional Agreements, references to the License or the KRAKEND License shall be understood to refer to this VAR End Customer License if you acquired it through a VAR.
1.21 “VAR End Customer License Agreement" means the agreement you have entered into with VAR Reseller for the acquisition of the KRAKEND License.
1.22 “VAR Reseller Agreement” means the Agreement entered into between KRAKEND and its Value-Added Resellers for the distribution and resale of the Software.
1.23 “VAR” or “VAR Reseller” means the company that has entered into a VAR Reseller Agreement with KRAKEND for the distribution and resale of the Software in a Territory during a determined term.
Where these General Terms use terms defined in the LA, MLA or VAR Reseller Agreement, those terms shall have the same meaning as in such agreements.
2. Updates to the General Terms
2.1 KRAKEND may make changes to these General Terms from time to time and, if we do, we will notify you by revising the date at the top of the Terms and, written notice will be sent to Licensees, directly or through your VAR Reseller. Any such changes will not apply to any dispute between you and KRAKEND arising prior to the date on which we posted the revised General Terms incorporating those changes.
2.2 Amendments will become effective thirty (30) days after posting or notice date.
3. Additional Terms
3.1 Our Services and Software are licensed, not sold to you, and may be subject to one or more of the additional agreements (“Additional Agreements”), such as the ones below:
- a) License Agreement
- b) Marketplace License Agreement
- c) VAR End Customer License
- d) VAR Reseller Agreement
3.2 If there is any conflict between the terms herein and the Additional Agreements, such Additional Agreements shall govern in relation to those Services or Software. Additional Agreements are also subject to amendments as described in Section (Updates to the General Terms) above.
4. License
4.1 Subject to your compliance with the Terms, applicable Laws, and specific conditions of your License Agreement or VAR End Customer License Agreement, we hereby grant you a non-exclusive, limited, revocable non-sublicensable limited License for you to install, access, and use the Software we make available to you, in the extension and with features indicated in your Subscription Plan.
4.2. The KRAKEND Software is licensed only for the production servers and instances (“Instances”) specified in each Subscription Plan, and in all cases shall be managed and administered by the End Customer and not by its subsidiaries, affiliates or third party companies in its group or related to it, regardless of the number of services, APIs, users, calls or transactions, throughput, regions or cores per machine that may run in the environment of the End Customer or companies in its group, as specified in the applicable Subscription Plan, and/or its use in pre-production servers. IIf the End Customer’s traffic requires more processing capacity, additional Instances may be added upon request and update of the Order Form within the License Agreement or VAR End Customer License Agreement.
4.3. Likewise, each KRAKEND License is to be managed and/or administered by one (1) Licensee in the Instances determined by its Subscription Plan and cannot be shared. The KRAKEND License and Licensed Materials are provided only to the Licensee, and may not be extended and, therefore, is not authorized for management or administration on a network, nor by third parties other than the Licensee whether they are members of the same corporate group, subsidiaries, Affiliates and/or any other entities related or not in any way to the Licensee. Allowing management or administration permits to the Software by third parties, sharing the Software or making it available on a network violates the License and will constitute a material breach of these General Terms.
4.4. At the end of your KRAKEND License Term, your KRAKEND License will expire as set forth in your Order Form or in the LA or VAR End Customer License Agreement.
4.5. The version of the Software and the related Services provided for by KRAKEND or by the VAR in relation to the License will be those described in the LA or VAR End Customer License Agreement.
5. Intellectual Property
5.1. KRAKEND (and our licensors, as applicable) remain the sole owner of all right, title, and interest in the Software. Except as stated in these General Terms or the License Agreement or the VAR End Customer License Agreement, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Software. This means you (i) may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion, (ii) KRAKEND retains title to all exploitation rights relating to the Software, in particular, but not exclusively, the right of reproduction, distribution, public communication, transformation of the computer program, as well as other Intellectual Property Rights related to the computer program. We reserve all rights not granted under these General Terms, the License Agreement and/or the VAR End Customer License Agreement.
5.2. The ownership of the Software does not affect the ownership of the data and/or information generated, modified, maintained and/or destroyed, in relation, directly or indirectly, to the use of the Software, as provided in these General Terms, the LA or the VAR End Customer License Agreement, which will remain owned by the Licensee and/or the VAR or third parties who have authorized the processing of their information for this purpose.
5.3. Licensee shall not do, nor shall it authorize any person to do, any of the following: (i) use the Licensed Materials for any purpose or in any manner not specifically authorized by these General Terms or the Additional Documents; (ii) make any copies or prints, or otherwise reproduce or print, any portion of the Licensed Materials, whether in printed or electronic format; (iii) distribute, republish, download, display, post, or transmit any portion of the Licensed Materials; (iv) create or recreate the source code for, or re-engineer, reverse engineer, decompile, or disassemble the Licensed Materials; (v) modify, adapt, translate, or create derivative works from or based upon any part of the Licensed Materials, or combine or merge any part of the Licensed Materials with or into any other software, document, or work; (vi) refer to or otherwise use any part of the Licensed Materials as part of any effort to develop a product or service having any functional attributes, visual expressions, or other features or purposes similar to those of the Licensed Materials; (vii) remove, erase, or tamper with any copyright, logo, or other proprietary or trademark notice printed or stamped on, affixed to, or encoded or recorded in the Licensed Materials, or use a proxy, reverse proxy, or any other such mechanism that is intended to, or has the effect of, obscuring any of the foregoing or confusing any party as to Licensor’s rights in the Licensed Materials, (viii) fail to preserve all copyright and other proprietary notices in any copy of any portion of the Licensed Materials; (ix) sell, market, license, sublicense, distribute, rent, loan, or otherwise grant to any third party any right to possess or utilize any portion of the Licensed Materials without the express prior written consent of Licensor (which may be withheld by Licensor for any reason or conditioned upon execution by such party of a confidentiality and non-use agreement and/or other such other covenants and warranties as Licensor in its sole discretion deems desirable); (x) use the Licensed Materials to gain or attempt to gain access to any software applications, computer systems, or data not expressly authorized under this Agreement; (xi) use the Licensed Materials to store, receive, or distribute any information that violates any applicable law; or (xii) attempt to do or assist any party in attempting to do any of the foregoing.
6. Confidentiality
6.1. Non-Use Obligation. Except as expressly authorized in these General Terms or the Additional Documents, during the Term and forever thereafter (or for such shorter period as may be imposed by applicable law), a Party shall not use any Confidential Information of the other Party, except at the request of and for the benefit of such other Party, without the express prior written consent of the other Party.
6.2. Non-Disclosure Obligation. Except as otherwise may be permitted by these General Terms or the Additional Documents, the Parties will not, without the express prior written consent of the other Party, disclose any aspect of the other Party’s Confidential Information to any third party; provided, however that a Party may disclose appropriate portions of the other Party’s Confidential Information to those of its employees, contractors, agents, and professional advisors having a bona fide need to know the specific information in question, provided that all such persons are bound by contract, employment policies, or fiduciary or professional ethical obligation to maintain such information in confidence.
6.3. Compelled Disclosure. If a Party is ordered by a court, administrative agency, or other governmental body of competent jurisdiction to disclose Confidential Information, or if it is served with or otherwise becomes aware of a motion or similar request that such an order be issued, then such Party will not be liable to the other Party for disclosure of Confidential Information required by such order if such Party complies with the following requirements: (i) if an already-issued order calls for immediate disclosure, then such Party immediately shall move for or otherwise request a stay of such order to permit the other Party to respond as set forth in this paragraph; (ii) such Party immediately shall notify the other Party of the motion or order by the most expeditious possible means; (iii) such Party shall not oppose a motion or similar request by the other party for an order protecting the confidentiality of the Confidential Information, including not opposing a motion for leave to intervene by the other Party; (iv) such Party shall exercise its best efforts to obtain reasonable assurance that confidential treatment will be accorded the Confidential Information so disclosed; and (v) such Party will disclose only that portion of the Confidential Information that is legally required to be disclosed.
6.4. Security of Confidential Information. Each Party possessing Confidential Information of the other Party will maintain all such Confidential Information under secure conditions, using the same security procedures used by such Party for the protection of its own Confidential Information of a similar kind and in any event not less than reasonable security measures.
6.5. Copying of Confidential Information. Except as otherwise may be permitted by these General Terms or the Additional Documents, a Party shall not copy or otherwise reproduce any part of any Confidential Information of the other Party, nor attempt to do so, without the prior written consent of the other Party. Any embodiments of Confidential Information of a Party that may be generated by the other Party, either pursuant to or in violation of these General Terms or the Additional Documents will be deemed to be the sole property of the first Party and fully subject to the obligations of confidence set forth herein.
6.6. Proprietary Legends. Without the other Party’s prior written consent, a Party shall not remove, obscure, or deface on or from any embodiment of any Confidential Information any proprietary legend relating to the other Party’s rights.
6.7. Reports of Misappropriation. Each Party immediately shall report to the other Party any act or attempt by any person of which such Party has knowledge or reasonably suspects (i) to use, disclose, or copy Confidential Information without authorization from the other Party, or (ii) to reverse assemble, reverse compile, or otherwise reverse engineer any part of the Confidential Information, and each party shall take reasonable steps to prevent further unauthorized use or disclosure.
6.8. Post-Termination Procedures. Except as otherwise expressly provided in these General Terms or the Additional Documents, promptly upon the expiration or any termination of these General Terms or the Additional Documents or other expiration or termination of a Party’s right to possess and/or use Confidential Information, each Party shall turn over to the other Party (or destroy and certify the same in writing, if agreed in writing by the other Party) any embodiments of any Confidential Information of the other Party. The confidentiality obligations set out in this Section shall remain in force after the termination of these General Terms or the Additional Documents for any reason.
7. Free trials and Demo Use
7.1. KRAKEND may provide free trial and demo versions of the Software during a limited term in its sole discretion (the “Demo License”). If access to the Software is provided to you for trial or demo purposes, such access is governed by this Section and these General Terms.
7.2. You may only use the Demo License for the period and purposes stated when the Demo License is provided to you. You must not use any materials of the Demo License or Software for any commercial purposes.
7.3. At any time prior to or during the Demo License term, KRAKEND may, in its sole discretion, terminate the Demo License without prior notice and without any liability to you, to the extent permitted under applicable law, for any reason, including to prevent abuse of the Demo License. After the Demo License period expires, you may continue using the Software in the free version of the same, if available, or as otherwise permitted by KRAKEND. During the Demo License, no express or implied warranties shall apply to the Software; all Software is provided “as-is” with all defects, and no Professional or Support and Maintenance Services, or technical or other support of any kind is included.
8. Third party services and software
8.1. KRAKEND may make third party software and services available to you (including plugins and extensions) directly or through VAR Resellers. Your acquisition and use of such third-party software and services is solely between you and the third party, and you are responsible for complying with all applicable third-party terms.
8.2. In no event shall KRAKEND be liable for malfunctions, errors, disconnections, security breaches and other computer or otherwise failures that may appear in the Software or in your systems as a result of the use of software and/or services of third parties.
9. User conduct
You and the End Users related to you (including your affiliates, officers, agents, employees and/or partners where KRAKEND Software may run in accordance with Section 4 (License) must use the Software responsibly and not misuse it. For example, you must not:
9.1. use the Software without, or in violation of, a written license or agreement with KRAKEND.
9.2. copy, modify, host, stream, sublicense, or resell the Software.
9.3. offer, use, or permit the use of or access to the Software in a computer services business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time-sharing basis, as a part of a hosted service, or on behalf of any third party;
9.4. circumvent any access or use restrictions put into place to prevent certain uses of the Software.
9.5. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including not disclosing an applicable sponsorship or endorsement relationship when you leave a review.
9.6. attempt to disable, impair, or destroy the Software.
9.7. upload, transmit, store, or make available any code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Software.
9.8. disrupt, interfere with, or inhibit any other user from using the Software (such as stalking, intimidation, harassment, or incitement or promotion of violence or self-harm).
9.9. engage in chain letters, junk mail, pyramid schemes, phishing, spamming, or other unsolicited messages.
9.10. engage in fraudulent activities, such as payment and refund fraud.
9.11. artificially manipulate or disrupt the Software.
9.12. violate applicable law.
Licensee will control access to and use of the Software by End Users and is responsible for any use of the Software that does not comply with this Agreement before KRAKEND, directly or through the VAR.
10. Fees and Payment
10.1. You must pay any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, VAT, foreign exchange fees, and foreign transaction fees). We are not responsible for these fees.
10.2. We may take steps, directly or through our VARs to collect the fees you owe us. You are responsible for all related collection costs and expenses.
11. Indemnification
11.1 Without prejudice to any other indemnity foreseen in the Additional Documents, You will indemnify us and our subsidiaries, Affiliates, officers, agents, employees, partners, and licensors from any claim(s), demand(s), loss(es), or damage(s), including reasonable attorneys’ fees, arising out of, or related to your use of the Software (as applicable), or your violation of the Terms (“Matter”). We have the right to control the defense of any Matter subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any Matter.
12. Limited Warranty
12.1. EXCEPT AS SPECIFICALLY PROVIDED IN THE LICENSE AGREEMENT, THE SOFTWARE AND ALL SERVICES ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT SUPPORT OR OTHER SERVICES BY LICENSOR, EXCEPT WHAT EXPRESSLY AGREED IN THE ORDER FORM WITH REGARDS SUPPORT AND MAINTENANCE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KRAKEND, ITS AFFILIATES, AND THIRD-PARTY PROVIDERS SUCH AS VAR (“COVERED PARTIES”) DISCLAIM ANY AND ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS (EXPRESS, IMPLIED, OR STATUTORY, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE AND SERVICES AND ANY PART THEREOF, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY (INCLUDING, WITHOUT LIMITATION, AS TO THE SEQUENCE, COMPLETENESS, TIMELINESS, ADEQUACY, ACCURACY, AND/OR RELIABILITY), HARDWARE COMPATIBILITY, USE OF THE SOFTWARE IN PRE-PRODUCTION ENVIRONMENTS, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT THE COVERED PARTIES KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR OTHERWISE ARE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING, OR OTHERWISE. THEREFORE, THE COVERED PARTIES DISCLAIM ANY WARRANTY THAT THE RESULTS OBTAINED FROM THE USE OF THE SOFTWARE WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR THAT ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECT (EXCEPT WHAT EXPRESSLY AGREED IN THE ORDER FORM WITH REGARDS SUPPORT AND MAINTENANCE SERVICES). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COVERED PARTIES OR BY ANY COVERED PARTIES’ AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. LICENSEE ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND SERVICES. LICENSOR EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE.
12.2. FURTHER, THE COVERED PARTIES DO NOT REPRESENT AND WARRANT THAT THE SOFTWARE DOES NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON.
13. Limitation of Liability
13.1. The Covered Parties specifically disclaim all liability for any actions resulting from your use of the Software. You acknowledge and agree to use and access the Software at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use of and access to the Software.
13.2. Unless explicitly stated in the LA or the VAR End Customer License Agreement, in no event shall the Covered Parties be liable to you or any other party for any special, incidental, indirect, consequential, moral, exemplary or punitive damages whatsoever, regardless of cause, including losses and damages (A) resulting from loss of use, data, reputation, revenue, or profits, whether foreseeable or not; (B) based on any theory of liability, including breach of contract or warranty, negligence, or other tortious action; or (C) arising out of or in connection with your use of or access to the Services and Software. Nothing in these General Terms limits or excludes our liability for gross negligence or intentional misconduct.
13.3. Our total liability in any matter arising out of or related to the Terms is limited to as indicated in the License Agreement or the VAR End Customer License Agreement.
13.4. These limitations and exclusions in this Section 13 (Limitation of Liability) apply to the maximum extent permitted by law even if (A) a remedy does not fully compensate you for any losses or fails of its essential purpose; or (B) the Covered Parties knew or should have known about the possibility of damages. This constitutes the entire liability of the Covered Parties and your exclusive remedy with respect to access and use of the Software.
13.5. KRAKEND will not be liable for any failure produced in the Licensee systems and/or in Licensee’s security systems not directly related to the Software. Furthermore, KRAKEND will neither be liable in the event the Licensee incurs, performs and/or carried out any Prohibited activities. Prohibited activities will be considered those that could cause damages or failures of the following nature: corporal, material, mechanical, electrical, operation of industrial processes (e.g: assembly lines, oil pipelines, PLC), any financial transactions (transfers of funds, money, stocks, or other banking instruments), or those related to gambling.
13.6. KRAKEND will not be liable for delays, nonperformance or losses which are directly or indirectly attributable to acts outside his reasonable control, including, without limitation, fire, floods, earthquakes, storms, electrical outages, electrical surges or spikes, lightning, acts of terrorism, acts of war, riot, pandemic, epidemic or other circumstances affecting the public leading to police or government intervention, acts of regulators, strikes, embargoes, picket lines, failure of communication systems or networks acts of domestic or foreign governments (including the imposition of or any increase in any tariff), changes in any laws or regulations, fires, floods, explosions, epidemics and other public health events, power, or other utilities, strikes or other labor problems, riots, or unavailability of supplies (a “Force Majeure Event”). Should a Force Majeure Event take place, the affected Party shall inform the other Party as soon as it is aware of such situation, and the Parties shall agree on the extraordinary means to be used for the continuation of these General Terms, the LA and/or the VAR End Customer License Agreement.
13.7. KRAKEND shall not be liable for any actual or alleged anticompetitive or unfair or deceptive practices conducted through or by use of the Software, including trade secret misappropriation practices, license infringement, patent infringement or intellectual property infringement of third parties. KRAKEND shall neither be liable for any content entered, posted or advertised on the Internet in connection with the Software and not previously authorized by KRAKEND, nor for the impersonation and/or misrepresentation of any third party through the Software or the forwarding of fraudulent instructions in connection with the Software to KRAKEND, nor for Licensee’s failure to comply with its employment, tax, financial or other obligations. All such actions are considered Prohibited Activities.
13.8. You will defend KRAKEND and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to: End Customer’s or any authorized user’s violation of this Agreement or user terms (“Claims Against Licensor”), and will indemnify Licensor and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Licensor or its Affiliates in connection with or as a result of, and for amounts paid by Licensor or its Affiliates under a settlement End Customer approves of in connection with a Claim Against Licensor. Licensor must provide End Customer with prompt written notice of any Claims Against Licensor and allow End Customer the right to assume the exclusive defense and control of the claim and cooperate with any reasonable requests assisting End Customer’s defense and settlement of such matter.
14. Data Protection
14.1 KRAKEND guarantees that it will not access your personal data, or any personal data related to you for the provision of the Software. However, KRAKEND reserves the right to monitor or otherwise report, at any time without further consent, the use of the Software by the Licensee to verify that said use is in accordance with the terms and conditions set out in these General Terms, or the License Agreement. Nonetheless, such monitoring does not entail personal data processing, as it just collects the License ID associated to a company, and not to the Device or its owner.
15. Audits
15.1. KRAKEND will take the measures needed to defend its Intellectual Property Rights of the Software and will diligently take all such actions that may be necessary before the relevant authorities, institutions, or courts, against any claims or violations by third parties.
15.2. You acknowledge and agree that we may collect information about your usage of the Software to maintain security and monitor performance and compliance with the License.
15.3. We may, if necessary to comply with applicable laws or to confirm the proper use of the License, no more than once every six months, with at least 30 days’ notice, designate our personnel or an independent third-party auditor bound by confidentiality to review your records or system logs (by manual or electronic means, or both) to verify your installation and use of the Software for compliance with our terms and conditions. You agree to use reasonable efforts to provide all records and information requested by us within thirty (30) days to confirm that the installation and use of the Software is in accordance with your license. If the audit reveals any discrepancies with the KRAKEND License for the Software, you must promptly obtain all necessary licenses, subscriptions and related maintenance and support, or take other appropriate steps, either directly or through your VAR Reseller, to remedy such discrepancies. Failure to remedy such discrepancies will constitute a material breach of the General Terms and Conditions and/or the License Agreement.
16. Trade Sanctions and Export Control Compliance
16.1. You must comply with all domestic and international export laws and regulations that apply to the Software, which include restrictions on destinations, end users and end use.
16.2. The Software and its use may be subject to laws, restrictions, and regulations of the European Union and other jurisdictions that (A) govern the import, export, and use of the Software; (B) limit the direct or indirect export, re-export, transfer or release of the Software to any country, entity or individual subject to export restrictions or sanctions imposed by such EU or other jurisdictions.
16.3. KRAKEND reserves the right, at its sole discretion, to interrupt or prohibit the supply of the Software to you or to any party or country if KRAKEND reasonably believes there is a risk of dual use, misuse or violation of the EU export control laws and/or other applicable export control laws to the Parties.
16.4. By using the Software, you, your employees, affiliates and related companies or persons shall comply with all such laws, restrictions, and regulations. Therefore, you warrant that you are not prohibited from receiving the Software by the laws of any jurisdiction, that your use of the Software do not violate any applicable export control laws or regulations, and you undertake not to use or provide the Software to (i) any end-user engaged or under the suspicion to be engaged in activities related to weapons, terrorism or any other prohibited or restricted activities under EU law (i) any sanctioned country.
16.5. You acknowledge, when applicable, that the Licensed Materials may be subject to USA export or resale restriction or regulation, and Licensee will comply with such regulations and restrictions. Licensee exclusively shall be responsible for ensuring, and Licensee represents and warrants, that (i) neither Licensee nor any affiliate of Licensee is an individual or entity located in, under the control of, or a national or resident of, Cuba, North Korea, Iran, Syria, Lebanon, or Sudan, or listed under the United States Treasury Department’s Office of Foreign Asset Control list of “specially designated nationals and blocked persons,” the United States Commerce Department’s “denied parties list,” the United States Commerce Department’s “BIS Entity List,” or other such applicable lists pursuant to any Export Control Laws, (ii) under applicable Export Control Laws, neither Licensee nor any affiliate of Licensee is domiciled in an embargoed country and is not a prohibited end user, and (iii) neither Licensee nor any affiliate of Licensee will use, export, re-export, transship, or otherwise convey, directly or indirectly, the Licensed Materials or any other goods or services provided by Licensor to or for the benefit of Licensee nor any affiliate of Licensee in any manner that would violate applicable Export Control Laws and will not authorize or assist a third party to do so. Licensee shall provide such information requested by Licensor from time to time for Licensor to comply with applicable law. “Export Control Law” means any export control, trade, or anti-terrorism law, regulation, or list, as amended from time to time, of the United States or any other country.
16.6. Additionally, you agree not to upload to or transmit over any Software any content that is controlled for export from the European Union and the United States (including technical data controlled under the US International Traffic in Arms Regulations and technology controlled under the US Export Administration Regulations) without prior written approval from KRAKEND, and to cooperate fully with KRAKEND in any export control or sanctions compliance efforts, including providing necessary information and documentation.
16.7. You will indemnify and hold KRAKEND harmless from any claims, damages or liabilities arising from your failure (or your employees, affiliates, and related companies or persons failure) to comply with this export control and international sanctions Section.
17. Updates to Services and Software and Availability.
17.1. We may modify, update, or discontinue the Software (including any portions or features or services related), which modifications, updates or discontinuations may, for clarity, be detrimental or result in a diminishment of value to you, at any time, without liability to you or anyone else.
17.2. For changes to paid offerings that, in KRAKEND’s reasonable discretion, are detrimental or result in a material diminishment of value to you, we will make reasonable commercial efforts to notify you of such modification, update, or discontinuation.
17.3. If we discontinue the Software in its entirety, we will use reasonable commercial efforts to allow you to transition to other Software.
17.4. The Software is not available in all countries. Access to Software in certain countries may be blocked by us or foreign governments. It is your responsibility to make sure your use of the Software is legal or available where you use it. Software is not available in all languages.
18. No Modifications, Reverse Engineering
18.1 Certain elements of the Software constitute our (or our licensors’) confidential information. Except as expressly permitted in these General Terms, and/or the License Agreement, you may not (and will not allow third parties to) (A) modify, port, adapt, or translate any portion of the Software; (B) reverse engineer (including but not limited to monitoring or tracking the inputs and outputs flowing through a system or an application in order to recreate that system), decompile, disassemble, or otherwise attempt to discover, the Software, the source code, data representations or underlying algorithms, processes, methods, and any other portion of such Software; or (C) use, or allow third parties to use, the Software (including any architectures, models, or weights [which is considered KRAKEND’s confidential and proprietary information]), or any content, data, output, or other information received or derived from the Software, to directly or indirectly create, train, test, or otherwise improve any machine learning algorithm or artificial intelligence system that mimics or performs any function substantially similar to any function contained within the Services or Software.
19. Miscellaneous.
19.1. English Version. The English version of these General Terms will be the version used when interpreting or construing the General Terms.
19.2. Notice to KRAKEND. You may send notices to us at [email protected]
20. Applicable Law and Jurisdiction
20.1. Spanish general law governs these General Terms.
20.2. The Parties agree to submit all conflicts arising from or related to these General Terms to the courts of the city of Barcelona, and they waive any other jurisdiction to which they may be entitled.
Exhibit A. Software and Trademarks
- KRAKEND
- KRAKEND API GATEWAY
- KRAKEND ENTERPRISE
- KRAKEND COMMUNITY EDITION
- KRAKEND CE
- KRAKEND EE
- KRAKEND PLAYGROUND
- KRAKENDESIGNER
- and any other derivatives including the KRAKEND word.