GC Pivotal xLink API SPECIFICATION AND SAMPLE IMPLEMENTATION
1. GRANT. Subject to the terms of this Agreement, GC Pivotal, LLC d/b/a Global Capacity ("Global Capacity") hereby grants You a limited, personal, nonsublicensable, transferable, royalty-free, non-exclusive license to use the Global Capacity xLink application program interface ("API") specification for DSL provisioning (the "Specification") and a sample implementation of the API specification (the "Sample") (collectively, the "Downloaded Materials") that You are about to download, along with any documentation that accompanies it. Global Capacity retains all rights to the Downloaded Materials. You may copy, distribute, install, and use the Specification, including distributing to third-parties, provided that each copy retains all of the original Specification's proprietary notices and a copy of this license, and provided that Global Capacity gets attribution for the Specification. You may copy, distribute, install, and use the Sample only within Your organization. You specifically may not distribute the Sample to third-parties.
2. RESTRICTIONS. You may not, directly or indirectly rent or lease the Downloaded Materials; use the Downloaded Materials for timesharing or service bureau purposes, or otherwise use the Downloaded Materials for any commercial purpose except to create a means for connecting to Global Capacity's system and software for ordering and using Global Capacity services; use the Downloaded Materials for performing comparisons or other "benchmarking" activities, either alone or in connection with any software (and You will not publish any such performance information or comparisons); or remove any proprietary notices from the Downloaded Materials. As between the parties, title, ownership rights, and intellectual property rights in and to the Downloaded Materials, and any copies of portions thereof, shall remain in Global Capacity and its suppliers or licensors; and title, ownership rights, and intellectual property rights to any modifications to the Downloaded Materials made by You shall remain in You. You understand that Global Capacity may modify or discontinue offering the Downloaded Materials at any time. The Downloaded Materials are protected by the copyright laws of the United States and international copyright treaties. This agreement does not give You any rights not expressly granted herein, and You acknowledge and understand that use and implementation of the Downloaded Materials to connect to the Global Capacity system or order Global Capacity products will be subject to Global Capacity's standard terms and conditions and payment of fees.
3. SUPPORT AND UPGRADES. This Agreement entitles You to the support, upgrades, patches, enhancements, and fixes (collectively "Support") for the Downloaded Materials as offered by Global Capacity, provided that You pay any fees stated therein. Additional Support for the Downloaded Materials may be made available by Global Capacity subject to payment of additional license, support, and upgrade fees to Global Capacity. Notwithstanding the foregoing, any Support that You may receive becomes part of the Downloaded Materials and the terms of this Agreement apply thereto.
4. INDEMNITY. You agree that Global Capacity shall have no liability whatsoever for any use You make of the Downloaded Materials. You hereby agree to indemnify and hold harmless Global Capacity from any and all damages, liability, costs, and expenses (including attorneys' fees) arising from claims related to Your use, and Your customers' use, of the Downloaded Materials.
5. WARRANTY AND DISCLAIMER. Global Capacity provides the Downloaded Material and any services that you receive "AS IS" and without warranty of any kind, and Global Capacity 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.
6. LIMITATION OF LIABILITY. You assume the entire risk as to the quality of performance of the Downloaded Materials. Global Capacity assumes no liability for the cost of any service of repair if the Downloaded Materials are defective.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, SHALL GLOBAL CAPACITY OR ITS LICENSORS, SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, DAMAGES RESULTING FROM USE OF THE DOWNLOADED MATERIALS, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES.
7. TERMINATION. You may terminate this Agreement and the license granted herein at any time by destroying or removing from all hard drives, networks, and other storage media all copies of Downloaded Materials. Global Capacity may terminate this Agreement and the license granted herein immediately if You breach any provision of this Agreement or within its sole discretion at any time. Upon receiving notice of termination from Global Capacity You agree to destroy or remove from such storage media all copies of the Downloaded Materials. Sections 2 and 4 through 10 shall survive termination of this Agreement.
8. EXPORT CONTROLS. You shall comply with all expert laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and not to export, or allow the export or re-export of the Downloaded Materials in violation of any such restrictions, laws or regulations. By downloading or using the Downloaded Materials, You are agreeing to the foregoing and You are representing and warranting that You are not located in, under the control of, or a national or resident of any restricted country or on any such list.
9. U.S. Government Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions set forth in subparagraphs (a) through (d) of the Commercial Computer-Restricted Rights clause at FAR 52.227-19 when applicable, or in subparagraphs (c) (1) (ii) of the Rights in Technical Data and Computer Software clause in DFARS 252.227-7013, and in similar clauses in the NASA FAR Supplement.
10. MISCELLANEOUS. This Agreement represents the complete agreement concerning this license between the parties and supersedes all prior agreement and representations between them. It 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. 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.