License Agreement

By downloading or using the client-side software for ChatEngine made available by PubNub, Inc. (“PubNub”) (together with all related documentation, the “Licensed Software”), you and, if applicable, the company or entity that you represent (collectively, “you” or “your”) are consenting to be bound by and are becoming a party to this License Agreement (this “Agreement”) with PubNub.  If applicable, you hereby represent and warrant that you are authorized and lawfully able to bind such company or entity that you represent to this Agreement.  If you do not have such authority or if you otherwise do not agree to all of the terms of this Agreement, you may not download or use the Licensed Software.  By downloading or using the Licensed Software, you agree to the following terms:

1. Subject to your compliance with this Agreement, PubNub grants you a limited, worldwide, perpetual, revocable (solely as provided in Section 4), non-transferable, sublicensable (solely to end users) right to use, modify and distribute the source and object code of the Licensed Software solely as integrated into your application in order to enable your application’s interoperability with either (a) PubNub products and services or (b) any open-source, non commercial framework for real-time communication.

2.  You may not rent, lease, assign, or lend the Licensed Software or distribute the Licensed Software on a stand-alone basis (but you can charge third parties for use of your application), or otherwise use or exploit the Licensed Software outside the scope of the license granted above. In the event of a sale of your application, you may, however, make a one-time permanent transfer of all of your license rights to the Licensed Software to another party, provided that: (a) the transfer must include all of the Licensed Software, including all its component parts, original media, printed materials and this Agreement; (b) you do not retain any copies of the Licensed Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving the Licensed Software reads and agrees to accept the terms and conditions of this Agreement.  You will protect the confidentiality of the Licensed Software using those measures that you use to protect your most sensitive software and information (which must be at least reasonable measures), provided that you may distribute the Licensed Software in accordance with the license above.  You will immediately notify PubNub of any unauthorized use, access to or disclosure of the Licensed Software of which you become aware.

3. PubNub is the owner or licensor of the Licensed Software.  The Licensed Software is licensed and not sold.  You hereby covenant that you will not assert any claim that the Licensed Software or any modifications or derivative works thereof created by or for PubNub or any of its affiliates infringe any intellectual property right owned or controlled by you or any of your affiliates.  You understand that PubNub may modify or discontinue offering the Licensed Software at any time without notice.  PubNub does not grant any and reserves all rights not expressly and unambiguously granted herein.  You agree that PubNub shall have no liability whatsoever for any use you make of the Licensed Software or your application that utilizes the Licensed Software.  You hereby agree to indemnify and hold harmless PubNub and its affiliates, and each of their directors, officers, employees and agents, from any and all damages, liabilities, losses, costs, and expenses (including attorneys’ fees) resulting from third party claims arising from your use, distribution or other exploitation of the Licensed Software or your application.

4. Termination. This Agreement is effective until terminated. You may terminate this Agreement and the license granted herein at any time.  Your rights under this Agreement will terminate automatically without notice from PubNub if you fail to comply with any term(s) of this Agreement. Upon the termination of this Agreement, you shall cease all use of the Licensed Software and destroy all copies, full or partial, of the Licensed Software.  All remedies for breach, and Sections 2 through 9, shall survive any termination of this Agreement.

5.  The Licensed Software is provided ‘AS IS’ and PUBNUB DISCLAIMS ALL LIABILITIES, WARRANTIES AND INDEMNITIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY OR NON-INFRINGEMENT.  TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PUBNUB BE LIABLE FOR (A) PERSONAL INJURY, (B) ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (C) OTHER DAMAGES IN EXCESS OF ONE HUNDRED DOLLARS (US$100).  

6.  This Agreement is governed by the laws of the State of California without regard to its conflicts of laws provisions and contains the entire understanding of the parties on the subject matter hereof. The parties agree to the exclusive jurisdiction of the state and federal courts in San Francisco, California.  Notwithstanding the foregoing, either party may institute a claim for equitable remedies, including injunctive relief and specific performance, in any court of competent jurisdiction.

7.  You shall comply with all laws, rules and regulations of the Department of Commerce, the United States Department of the Treasury Office of Foreign Assets Control (“OFAC”), and other United States or foreign agency or authority, and not export, or allow the export or re-export of the Licensed Software in violation of any such restrictions, laws or regulations.  By downloading or using the Licensed Software or exercising any of the rights granted in this Agreement, you are agreeing to the foregoing and representing and warranting that you are not located in, under the control of, or a national or resident of any country to which the United States has embargoed good or services or similar restrictions, and you are not identified as a “Specially Designated National” by OFAC, you are not placed on the U.S. Commerce Department’s Denied Persons List or any similar lists, and you will not access or use the Licensed Software if any applicable laws in your country prohibit you from doing so in accordance with this Agreement or limit the terms of this Agreement.

8.  All Licensed Software is deemed to be “commercial computer Licensed Software” and “commercial computer Licensed Software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display, transfer or disclosure of the Licensed Software by any agency, department or other entity of any government, shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms herein or in a writing signed by an authorized signatory on behalf of PubNub. No other rights are granted.  

9.  This Agreement contains the complete agreement between you and PubNub regarding the Licensed Software and supersedes all prior agreements and representations between you and PubNub regarding the Licensed Software.  This Agreement may only be amended and any provision may only be waived by a writing executed by both parties.  You agree to promptly provide PubNub with all information and documentation that PubNub requests to verify your compliance with this Agreement.  If any provision of this Agreement is held to be invalid or unenforceable, it shall be reformed to the limited extent necessary to make it enforceable.  Except as expressly set forth herein, you may not assign or transfer any part of this Agreement to any third party.  PubNub may assign and transfer this Agreement without consent in its discretion.  Any breach of this Agreement by you would cause irreparable injury to PubNub for which no adequate remedy at law exists, and you agree that equitable remedies, including injunctive relief and specific performance, are appropriate remedies to redress any such breach or threatened breach, in addition to all other remedies available.  As used herein, “including” means “including without limitation”.

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