BY CLICKING ON THE “ACCEPT” OR “”SUBMIT” BUTTON, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU,” “YOUR,” “YOURS” OR “LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, ARE BECOMING A PARTY TO THIS GAINSIGHT API LICENSE AGREEMENT (“AGREEMENT”), AND ARE HEREBY REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE. YOUR DOWNLOAD, INSTALLATION OR CONTINUED USE OF THE DOWNLOADED MATERIALS OR THE API (AS DEFINED BELOW) AND/OR SDK (AS DEFINED BELOW) SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AND YOU WILL HAVE NO RIGHT TO USE THE API. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO ALL OF THESE TERMS, TO THE EXCLUSION OF ALL OTHER TERMS.
- Subject to full compliance with the terms of this Agreement, Gainsight, Inc. (“we,” “us” “our” or “Gainsight”) hereby grants you a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to use our application programming interface and related information and documentation (collectively, the “API”) and our API Software Development Kit (“SDK”) for the sole purpose of allowing you to build software applications (each an “App”) that communicate with Gainsight’s Platform (the “Service”), and for other purposes authorized by us in writing.
- Subject to full compliance with the terms of this Agreement, we hereby grant you a limited, personal, non-sublicensable, non-transferable, royalty-free, nonexclusive license to distribute the SDK in script or object code form only as part of an App, and only subject to an end-user license agreement which is at least as protective of our proprietary rights in the SDK as those contained in this agreement. Without limiting the foregoing, these terms and conditions must include terms for Gainsight’s benefit regarding (a) restrictions on reverse engineering (to the maximum extent permitted by applicable law); (b) disclaimer of warranties; and (c) limitation of liability.
Except in connection with your limited right to distribute the SDK in script or object code form in accordance with Section 2, you agree not to disclose (or allow access to) the API or SDK (or any information derived from them) to any third party and will limit access to the API and SDK (and any derived information) to your employees who are developing the App. In support of this obligation, you will apply at least the same security that you use to protect your own most confidential information. You agree not to 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.
- Each App is responsible for maintaining 100% compatibility with the API, the SDK and the Service (including changes provided to you by Gainsight, which shall be implemented in the App promptly thereafter). If any App uses or implements an outdated version of the API, SDK or the Service, you acknowledge and agree that such App may not be able to communicate with the Service. You agree not to modify, extend, subset or superset the API to any extent. You understand that we may cease support of old versions or releases of the API or SDK.
- This Agreement does not grant any right to access or use the Services. The Services and access thereto and use thereof are governed by Gainsight’s standard applicable terms on our website that are in effect at the time of access and use and you hereby agree to such terms. Some or all of the Services may currently be free of charge, but we reserve the right to charge for certain or all Services in the future. If you wish to continue using such Services after we begin to charge for them, you must pay all applicable fees for such Services, including Gainsight’s standard pricing terms at www.gainsight.com/product-experience/pricing or other pricing terms that we may mutually agree on.
- You hereby grant us a nonexclusive, sublicensable, fully-paid, worldwide license to fully exercise and exploit all Intellectual Property Rights with respect to improvements or extensions created by or for you that are relevant to the API or SDK or otherwise result from or are enabled by access to the API or SDK. For clarity, this license does not grant Gainsight ownership over such improvements or extensions, which you will own, and you are not required to disclose any such patent or patent rights to Gainsight.
- We will use commercially reasonable efforts to (i) provide basic support services to you and (ii) maintain the security and integrity of the Service.
- You shall defend, indemnify, and hold harmless us, our affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses (including reasonable attorneys’ fees), that arise from or relate to (i) you or your end users’ use or misuse of, or access to, the Service (ii) your violation of this Agreement, (iii) infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity, or (iv) a claim alleging that any of your data infringes the rights of, or has caused harm to, a third party. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall assist and cooperate with us in asserting any available defenses.
- GAINSIGHT PROVIDES THE API AND SDK “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.
- LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, SHALL GAINSIGHT OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, OR DAMAGES RESULTING FROM LICENSEE’S USE OF THE API OR SDK. GAINSIGHT’S LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO (IN THE AGGREGATE) THE GREATER OF ONE-HUNDRED U.S. DOLLARS ($100) OR THE AMOUNTS PAID BY YOU TO GAINSIGHT IN CONNECTION WITH THE API AND/OR SDK. 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 LICENSEE HAS 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 YOU.
- 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 Gainsight to act with respect to a breach of this Agreement by Licensee or others does not constitute a waiver and shall not limit Gainsight’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 Gainsight’s consent and any action or conduct in violation of the foregoing shall be void and without effect. Gainsight 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 California law as such law applies to agreements between California residents entered into and to be performed within California. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in San Francisco, California; both parties hereby agree 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.