This is a License Agreement (the "Agreement") for certain source code (the "Licensed Technology") owned by Akamai Technologies, Inc. ("Akamai") that is useful in connection with Akamai's Download Manager service offerings.
Please read this Agreement. By using the Licensed Technology, or any modified version of the Licensed Technology, including any Derivative Works, Maintenance or Enhancements (as defined herein), you ("Licensee") agree to these terms. If the Licensee does not agree to the terms of this Agreement, the Licensed Technology cannot be integrated with Licensee's environment or otherwise used for any purpose.
The Licensed Technology consists of the software code "dlm.js" a library which provides user interface components and controls for use of the Akamai Download Manager. This Licensed Technology is provided to you in source code format. Akamai either owns or has the right to provide you the Licensed Technology, portions of which may be copyrighted.
License. Akamai grants to Licensee, and Licensee accepts from Akamai, a limited, non-exclusive, non-assignable, non-transferable, right and license to use the Licensed Technology. Licensee shall have the right to use and distribute the Licensed Technology for use with a Third Party Service; provided, however, that Akamai shall have no responsibility to support in any manner any such use, adaptation or distribution of the Licensed Technology with respect to any such Third Party Service.
Licensee shall not use the Licensed Technology with any third party service. Licensee shall not, for itself, any of its affiliates or any third party, and shall not allow any third party to: (i) modify "dlm.js" in any way; (ii) use, sell, sublicense, assign, or transfer the Licensed Technology, except as expressly permitted under this Agreement; (iii) disclose to any third party the Licensed Technology, any Derivative Work, or any Modification or Enhancement; (iv) provide products or services using the Licensed Technology, except in connection with utilization of Akamai Services; (v) copy or distribute the Licensed Technology except as expressly permitted hereunder; or (vi) remove from the Licensed Technology any language or designation indicating the confidential nature thereof or the proprietary rights of Akamai in such items, including any Akamai copyright or other proprietary rights notice or trademark reference. For the avoidance of any doubt, except as other provided, neither Licensee nor any other Person is permitted to use the Licensed Technology, any Derivative Work, or any Modification or Enhancement, either for itself or for any third party, for any purpose other in connection with the Services.
All other rights in and to the Licensed Technology, any Derivative Work, and any Modification or Enhancement, are hereby reserved to Akamai.
Akamai’s Proprietary Rights to Licensed Technology. Akamai retains all title, patent, copyright and other proprietary rights worldwide in the Licensed Technology, including all Derivative Works and all Modifications and Enhancements made by Akamai, regardless of the media in which such Licensed Technology is embodied, now or in the future. Licensee agrees that it shall not modify the Licensed Technology and that all Modifications or Enhancements to the Licensed Technology obtained by Licensee, or its employees or agents, acting alone or in collaboration with others, shall, together with all intellectual property rights associated therewith, including Derivative Works, be the exclusive property of Akamai. Licensee hereby agrees to take such further action and execute such further documentation as Akamai may reasonably request to give effect to the obligations set forth herein. Licensee agrees not to dispute any of Akamai’s ownership rights in the Licensed Technology, any Derivative Work, or any Modification or Enhancement. Licensee agrees that it does not have any ownership or other proprietary rights of any kind, express or implied, in the Licensed Technology, any Derivative Work, or any Modification or Enhancement, other than the limited right to use as granted herein.
Delivery. Akamai shall make the code available to Licensee, via electronic means unless otherwise agreed, including applicable user documentation, if any. Licensee shall provide Akamai confirmation that it has received the Licensed Technology. Licensee shall link to the production version of "dlm.js" hosted by Akamai using the link supplied in the implementation documentation. Licensee shall not download and host "dlm.js" independently.
Maintenance and Enhancements. Akamai is not required hereunder to provide any Maintenance, Enhancements or other support of the Licensed Technology. Akamai agrees to provide to Licensee any Modifications to the Licensed Technology as such Modifications may be implemented in Akamai’s codebase from time-to-time. Akamai reserves the right to decide whether or not to undertake development of Enhancements. If Akamai decides to undertake development of Enhancements, it does so on the basis of reasonable efforts in the nature of professional services. Fees and costs for delivery of such professional services shall be as agreed in writing in connection with the applicable Enhancement request, and, if not agreed in writing, shall be on a time and materials basis at Akamai’s standard rates. Enhancements carry no warranty unless expressly agreed otherwise by Akamai. Unless otherwise mutually agreed in writing, Akamai shall have no responsibility to provide to Licensee’s technical personnel any training or support for the Licensed Technology. Licensee shall use only the most recent version of the Licensed Technology.
License Fee. There shall be no license fee for the Licensed Technology.
Term and termination. The license rights granted hereunder shall remain in force until such time as Licensee ceases use of the Services. If either party is in breach of this Agreement, the other party may terminate this Agreement upon written notice to the Defaulting Party setting forth the date the termination will be effective ("Termination Date"), such date not to be less than 10 days following the date of the written notice unless otherwise provided by court order. The remedies for breach provided in this Section are not meant to be exhaustive or to exclude any other remedies available at law or equity.
Survival. Upon termination of this Agreement for any reason, the provisions in the Warranties and Disclaimer as well as the Limitation of Liability sections shall survive. Equitable Relief. Except as provided below, the rights granted to the parties under this Article IV are in addition to and cumulative of other remedies provided in this Agreement or available in law or in equity. Licensee recognizes that irreparable injury will result from a breach of this Agreement not curable solely by the payment of money and that money damages will be inadequate to fully remedy such injury. Nothing in the provisions of this section is intended to limit the rights of either party to seek or any court to enter any lawful form of equitable relief or any available provision of such relief ordered by the court.
Warranties and Disclaimer. Akamai warrants that it is the owner of all right, title and interest in and to the Licensed Technology and has the right to grant this license to Licensee. Akamai does not warrant that the Licensed Technology will be error-free, or that any permitted use of the Licensed Technology will be uninterrupted. Akamai makes no warranty or representation with respect to the Player Framework once it is used, adapted and/or distributed with respect to a Third Party Service. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE LICENSED TECHNOLOGY IS PROVIDED "AS IS," WITHOUT ANY WARRANTY WHAT¬SO¬EVER, AND THIS AGREEMENT EXCLUDES, AND AKAMAI SPECIFICALLY DISCLAIMS, ALL EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LICENSED TECHNOLOGY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANT¬ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Limitation of Liability. IN NO EVENT SHALL AKAMAI BE LIABLE UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOSS OR CORRUP¬TION OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUP¬TION, LOSSES RESULTING FROM SYSTEM SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMA¬TION, SYSTEM INCOMPATIBILITY OR PROVIDING INCORRECT COMPATIBILITY INFORMATION, OR SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES RESULTING FROM THE LICENSING, FURNISHING, PERFOR¬MANCE OR USE OF THE LICENSED TECHNOLOGY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, ANY CLAIM MADE BY A CUSTOMER OF LICENSEE WITH RESPECT TO THE BREACH OF ANY WARRANTY, COVENANT OR OBLIGATION SET FORTH IN ANY AGREEMENT BETWEEN LICENSEE AND SUCH CUSTOMER SHALL BE THE SOLE RESPONSIBILITY AND SOLE EXPENSE OF LICENSEE. THE ALLOCATIONS AND LIMITATIONS OF LIABILITY REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTAND¬ING OF THE PARTIES WITH RESPECT TO ALLOCATION OF RISKS INHERENT IN THEIR RELATIONSHIP, REGARDLESS OF THE SUCCESS OR EFFEC¬TIVE¬NESS OF OTHER REMEDIES.
Govering Law. This Agreement will be governed by, and construed in accordance with the laws of the Commonwealth of Massachusetts. Miscellaneous. This Agreement is binding upon and inures to the benefit of the parties and their respective successors and assigns, except to the extent specifically limited elsewhere in this Agreement. No failure on the part of any party to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy under this Agreement will operate as a waiver thereof; nor will any single or partial exercise thereof or the exercise of any other right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy or power. All remedies are cumulative and are not exclusive of any other remedies that may be available to a party whether at law, in equity or otherwise.
"Services" shall mean any and all media delivery and related services provided by Akamai in the ordinary business course. A "Third Party Service" is a media delivery service provided by a third party, including a third party content delivery network service provider. A Third Party Service does not include CDN switching, traffic sharing or splitting. "Derivative Work" shall mean a work that is based on one or more preexisting works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner in the copyright in such preexisting work, would constitute a copyright infringement, and specifically shall include any compilation that incorporates such a preexisting work. "Enhancement" means updates, upgrades, new versions, additions, extensions, interfaces, and improvements of any type to the Licensed Technology. "Maintenance" means any modifications, revisions and corrections of any type to the Licensed Technology that do not constitute Enhancements. "Person" shall mean any individual, corporation, partnership, limited liability company, trust, association or other entity or organization, including any governmental or political subdivision or any agency or instrumentality thereof.