THIS SOFTWARE LICENSE & SERVICES AGREEMENT (including all documents and URLs referenced herein, this “Agreement”) is entered into and effective as of the Effective Date of the applicable Order Form and is by and between Kinetica DB, Inc., with an office at, 101 California St., Suite 4560, San Francisco, California, 94111 (“Supplier”) and the Customer identified on the Order Form (hereafter referred to as “Customer”). The download, installation, access, or use of the Software is Customer’s acknowledgement and acceptance to the terms of this Agreement. If Customer does not agree to the terms of this Agreement Customer should not download, install, access or use the Software. Each of Supplier and Customer may be referred to herein individually as a “party” or collectively as the “parties.”
THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN THE PARTIES. SUPPLIER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
1. Software License.
1.1 Software License. Subject to the terms and conditions of the Agreement (including without limitation Customer’s obligation to pay all fees, the restrictions in Section 1.3 below, and any additional use restrictions set forth in the Order Form), Supplier grants to Customer a limited, non-exclusive, non-transferable (except to Customer’s Affiliates and as provided in Section 11.7), non-sub-licensable license during the License Term, identified on the Order Form, to install, execute, and use the Software, solely on Customer’s system, for Customer’s own internal business purposes, solely in accordance with the Documentation (the “License”). “Software” means the software that Supplier provides to Customer (in object code form only) as identified on the Order Form. “Order Form” means the order form, quote, or transaction document signed by the parties which references this Agreement. “Documentation” means the standard end-user technical documentation, specifications, materials and other information, if any, Supplier supplies in electronic format with the Software or makes available electronically. Supplier’s Documentation is available at http://www.kinetica.com/docs/. Advertising and marketing materials are not Documentation. “Affiliates” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 Evaluation License. The following terms only apply to Software licensed on a trial or evaluation basis as stated on an Order Form, via a pop-up notice, or otherwise. Supplier grants Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the evaluation period to install and use the Software only on servers owned or controlled by Customer and solely for Customer’s internal evaluation or test purposes. The evaluation period is thirty (30) days from the date of download by Customer or such other period specified in writing by Supplier. If Customer wishes to license the Software after the evaluation period, or for purposes other than those set forth in this Section 1.2, Customer may contact Supplier to request a production license. After the evaluation period, Customer’s license to use the Software will terminate and Customer’s access may be disabled by features in the evaluation Software license Key. Customer’s use of the Software for evaluation purposes is “as-is” without a right to Support Services or Supplier’s warranty or indemnification obligations set forth in this Agreement.
1.3 License Restrictions. Customer shall not: (i) use the Software except as expressly permitted under Section 1.1 of this Agreement; (ii) adapt, alter, publicly display, publicly perform, translate, create derivative works of, or otherwise modify the Software; (iii) sell, resell, sublicense, lease, rent, disclose, or distribute the Software or Services; (iv) transfer the Software to any third party except as provided in Section 1.1; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code for the Software, except as permitted by applicable law; (vi) remove, alter or obscure any proprietary notices on the Software or Documentation; or (vii) allow third parties to access or use the Software, including any use in any application service provider environment, service bureau, or time-sharing arrangements. Customer may, however, make a reasonable number of copies of the machine-readable portion of the Software solely for back-up purposes, provided that such back-up copy is used only to restore the Software on Customer’s system, and not for any other use or purpose. Customer will reproduce on each such copy all notices of patent, copyright, trademark or trade secret, or other notices placed on such Software by Supplier or its suppliers.
1.4 Delivery. Supplier will deliver the Software and any related Documentation electronically by making it available for download from a website or other online source. Customer acknowledges that the Software may require license keys or other codes (“Keys”) in order for Customer to install and/or use the Software. Such Keys may also control continued access to and use of the Software and may prevent the use of the Software on any systems except those of Customer. Acceptance of the Software will occur upon delivery of the Keys and such acceptance may not be revoked.
2.1 Available Services. By mutual agreement of the Parties, Supplier may provide Customer with Support Services and limited Consulting Services (collectively the “Services”) as specified on the Order Form. Maintenance and Support Services (“Support Services”) will be provided under Supplier’s current price and standard terms in effect at the time Support Services are ordered or renewed. Supplier’s Support Service terms are available at https://www.kinetica.com/agreements/. Supplier reserves the right to amend its standard Support Services terms at any time and will provide notice of any material changes to Customer. If Customer chooses to purchase additional Services i.e. consulting, training, etc. as part of Customer’s Order those terms may be found here: https://www.kinetica.com/agreements/. From time to time, the parties may desire to make changes to the Services identified on the Order Form and any such changes will be made pursuant to a change order agreed to by both parties, agreement by email with read receipt requested, shall suffice; however no additional work will be performed until the parties have agreed to such change order.
2.2 Consulting Services. If provided on an Order Form, Supplier may include limited, one time configuration, planning, installation, and deployment services to be performed within thirty days of Order Form Effective Date (“Consulting Services”). Supplier, at its sole cost and expense, shall furnish skilled personnel and any equipment necessary for the performance and timely completion of the Consulting Services. Supplier and Customer shall confer and agree upon the service schedule and timeline for delivery. Supplier agrees to comply with Customer’s work site policies, procedures, and standards in the performance of the Consulting Services.
3.1 Payment Terms. Customer will pay the total fees specified in the attached Order Form net thirty (30) days of the invoice date. All payments shall be made in U.S. dollars. Late payments will accrue interest at the rate of one and one-half percent (1.5%) per month. Additional payment terms may be set forth in the Order Form. All amounts paid by Customer under the Agreement shall be non-refundable and without set-off, unless otherwise provided herein.
3.2 Taxes. All amounts payable by Customer to Supplier under the Agreement are exclusive of any sales, use, excise, import, export or value-added tax, levy, duty or similar governmental charge which may be assessed based on any payment due hereunder, including any related penalties and interest (“Taxes”). Customer will pay (or reimburse Supplier for the payment of) all Taxes resulting from transactions under the Agreement, except Taxes based on Supplier’s net income. Unless Customer provides Supplier with a valid tax exemption or direct pay certificate upon execution of the Order Form, Customer shall be responsible for all Taxes, duties, and customs fees which may be assessed on the amounts paid for Software delivered and Services performed hereunder, excluding taxes based on Supplier’s income or payroll.
4.1 Confidential Information. By virtue of this Agreement, the Parties may have access to information that is confidential to one another (“Confidential Information”). Confidential Information shall include without limitation the Software, Services, any reports or data generated by Customer’s use of the Software, the terms and pricing under this Agreement, and all information clearly identified as confidential. Any benchmarks, evaluations or other comparative reports related to the Software are included within the definition of Confidential Information insofar as the content relates to or is based on the Software. Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or (iv) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree to hold each other’s Confidential Information in confidence during the term of this Agreement and for a period of three (3) years after termination of this Agreement. The parties agree, unless required by law, not to make each other’s Confidential Information available in any form to any third party for any purpose other than the implementation of this Agreement. Supplier, upon prior written approval by Customer, may reasonably use Customer’s name and a description of Customer’s use of the Software for its investor relations and marketing purposes.
4.2 Required Disclosures. In the event the receiving party is required under applicable law, rule, regulation, court or administrative order to disclose Confidential Information of the disclosing party, the receiving party shall use commercially reasonable efforts to: (i) promptly give notice, if permitted, to the disclosing party in order to enable the disclosing party to seek a protective order or other remedy; (ii) consult with the disclosing party with respect to the scope of the request or legal process to the extent possible; and (iii) limit any such disclosure to the extent necessary and required.
5. Term And Termination.
5.1 Term. This Agreement is effective as of the Effective Date specified on the Order Form and will remain in effect for the duration of the License Term unless earlier terminated in accordance with Section 5.3.
5.2 Renewal Term. At the expiration of the initial License Term, Customer may continue to receive License rights and Support Services in one (1) year increments or greater term as agreed under Supplier’s then current fees and policies. Supplier shall provide Customer reasonable notice of the License and Support Services fees due. If Customer elects not to renew, Customer shall notify Supplier of its intent not to renew at least sixty (60) days prior to the end of the applicable Term. For the avoidance of doubt, unless the parties agree otherwise, Consulting Services are not included in the renewal.
5.3 Termination of Agreement. In the event of default, the non-defaulting party may terminate this Agreement by providing written notice of termination to the defaulting party. If Customer is the defaulting party, Customer must promptly, at Supplier’s direction, destroy or return all affected Software and Documentation. Either Party will be in default if it declares bankruptcy, becomes insolvent, makes an assignment for the benefit of creditors, or otherwise fails to perform any of its duties or obligations and does not undertake an effort to substantially cure such default within thirty (30) days, except that any breach of Sections 1.3 (License Restrictions), 4 (Confidentiality), or 11.2 (Export Compliance) shall be grounds for immediate termination. The foregoing rights of termination are in addition to any other rights and remedies provided in the Agreement or by law.
5.4 Effect of Termination. Upon termination of the Agreement (or termination of any license granted hereunder), all rights of Customer to use the Software (or under the relevant license) will cease and: (i) all unfulfilled Order Forms will be terminated at Supplier’s discretion; (ii) any amounts owed to Supplier under the Agreement prior to such termination will be immediately due and payable; (iii) all License rights granted under the Agreement will immediately terminate and Customer shall promptly stop all use of the Software; (iv) Supplier’s obligation to provide Support Services for the Software, if in effect, will terminate; (v) Customer shall either erase all copies of the Software from Customer’s computers and destroy all copies of the Software and Documentation on tangible media in Customer’s possession or control or return such copies to Supplier; and (vi) upon request by Supplier, Customer shall certify in writing to Supplier that that it has returned or destroyed such Software and Documentation.
5.5 Survival. Sections 4 (Confidentiality), 5.4 (Effect of Termination), 5.5 (Survival), 6 (Proprietary Rights), 8 (Indemnity) (only for claims based on use of the Software prior to termination of the applicable License), 9 (Limitation of Liability), 11 (General) and Customer’s payment obligations under the Agreement will survive the termination of the Agreement.
6. Proprietary Rights.
6.1 Proprietary Rights. The Software is licensed and not sold to Customer, and no title or ownership to such Software or the intellectual property rights embodied therein passes as a result of the Agreement or any act pursuant to the Agreement. The Software and all patent, trademark, copyright, trade secret, and other intellectual property rights related thereto are the exclusive property of Supplier and its suppliers, and all rights in and to the Software not expressly granted to Customer in the Agreement are reserved. Any Service Deliverable(s), as defined below, and all patent, trademark, copyright, trade secret, and other intellectual property rights related thereto, are the property of Supplier on creation and are licensed nonexclusively to Customer, at no additional license fee, pursuant to the applicable Order Form and subject to the terms of this Agreement. “Deliverable(s)” mean the product or output of the Services (including without limitation all Software configurations, modifications, reports, manuals, and any custom code) delivered to Customer. Deliverables shall not include Customer data or reports generated from Customer’s use of the Software which shall be Customer’s proprietary information and the sole property of Customer. Nothing in the Agreement will be deemed to grant, by implication, estoppel or otherwise, a license under any existing or future patents of Supplier, except to the extent necessary for Customer to use the Software and Deliverable(s) as expressly permitted under the Agreement.
6.2 Feedback. If Customer provides Supplier with any suggestions, comments, or other feedback regarding the Software (“Feedback”) Customer acknowledges that such Feedback will become the exclusive property of Supplier, and Supplier may use (or not use) any such Feedback in any manner and for any purpose, without compensation to Customer and without implying or creating any interest on Customer’s part in any of Supplier’s products or services that may be based on such Feedback. Customer hereby irrevocably assigns to Supplier all right, title, and interest in any Feedback Customer provides.
7. Warranties and Representations.
7.1 General. Each Party represents and warrants that it has the right and power to enter into this Agreement, and that an authorized representative has executed this Agreement.
7.2 Compliance with Laws. Each party will perform its obligations under this Agreement in a manner that complies with all applicable laws. Each party will promptly notify the other party if it discovers it is itself in violation of applicable law that affects its performance under this Agreement or it receives a written allegation of noncompliance from a government agency. The party not in compliance will promptly take corrective action and notify the other of the steps taken to correct its noncompliance.
7.3 Limited Software Warranty and Remedy. For a period of sixty (60) days after delivery of the Software, Supplier warrants that the Software shall materially conform to the Documentation. Supplier does not warrant that operation of the Software will be uninterrupted or “bug” free. If Supplier breaches the foregoing software warranty and Customer promptly notifies Supplier in writing of the nature of the breach, Supplier shall make commercially reasonable efforts to promptly repair or replace the non-conforming Software without charge. If, after a reasonable opportunity to cure not to exceed thirty (30) days, Supplier does not repair or replace the non-conforming Software, Customer must return the Software and Documentation to Supplier, or certify in writing that all copies have been destroyed, and Supplier will refund the License and Support Services Fees it received from Customer for the Software. This is Customer’s sole and exclusive remedy for breach of the exclusive warranty in Section 7.3.
7.4 Limited Services Warranty and Remedy. Supplier shall provide qualified service providers who perform in a professional and workmanlike manner in accordance with industry standards. The warranty specified in this Section 7.4 shall apply only to failures or breaches of warranty which are reported to Supplier by Customer within thirty (30) days after (i) the date the Services are delivered to Customer, or (ii) the date of acceptance in the case of a Service Deliverable as set forth on the Order Form. Supplier’s sole obligation for failure to meet the warranty specified above shall be for Supplier, upon receipt of written notice of such failure from Customer, will attempt to remediate the failure or cure the breach within thirty (30) days of Customer’s written notice thereof if Supplier is unable to correct the failure or cure the breach, then Supplier shall return any fees paid for the Services.
7.5 Disclaimer of Warranties. Customer expressly understands and agrees that, to the extent permitted by applicable law, the Software and Services are provided on an “AS IS” and “AS AVAILABLE” basis. Except as set forth in this Section 7, Supplier hereby disclaims all warranties whether express, implied or statutory with respect to the Software, Documentation, and Services provided to Customer under the Agreement, including without limitation any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, any warranty that data will not be lost or corrupted or that the Software will function without error.
8.1 Supplier’s Obligation. Subject to the terms and conditions of this Section 8, Supplier will indemnify, defend and hold harmless at its own expense any suit or action brought against Customer by a third party to the extent that the suit or action is based upon a claim that the Software or Services infringes or misappropriates such third party’s United States intellectual property or trade secret rights, and Supplier will pay those costs and damages finally awarded against Customer in any such action or those costs and damages agreed to in a monetary settlement of such claim, in each case that are specifically attributable to such claim. However, such defense and payments are subject to the conditions that: (i) Supplier will be notified promptly in writing by Customer of any such claim; (ii) Supplier will have sole control of the defense and all negotiations for any settlement or compromise of such claim; and (iii) Customer will cooperate and, at Supplier’s request and expense, assist in such defense.
8.2 Injunction. If Customer’s use of Software or Services is prevented by injunction or court order because of infringement, or should any Software or Services be likely to become the subject of any claim in Supplier’s opinion, Customer will permit Supplier, at Supplier’s discretion, to: (i) procure for Customer the right to continue using such Software or Services in accordance with the Agreement; or (ii) replace or modify such Software so that it becomes non-infringing while providing substantially similar features. Alternatively, Supplier may terminate this Agreement and grant Customer (a) a pro rata refund of any unused balance of a subscription License Fees paid, or (b) a refund of the last perpetual License Fee paid for such Software as amortized on a five (5) year, straight-line basis, whereupon the applicable License will immediately terminate.
8.3 Exclusions. Supplier will have no liability to Customer or any of its Affiliates or subsidiaries for any claim of infringement or misappropriation to the extent based upon: (i) use of the Software or Software Deliverable not in accordance with the Agreement or the Documentation; (ii) the combination of the applicable Software with third party hardware or software not conforming to the operating environment specified in Documentation; (iii) use of any release of the Software or Software Deliverable other than the most current release made available to Customer; (iv) any modification of the Software or Software Deliverable by any person other than Supplier; or (v) instructions, designs, specifications, or material not furnished by Supplier. Supplier will not indemnify Customer for any infringement claim based on: (1) a patent that Customer was aware of prior to the effective date of this Agreement; or (2) Customer’s actions prior to the effective date of this Agreement.
9. Limitation Of Liability.
In no event will Supplier be liable to Customer or any other party for any loss of data, loss of the use or performance of any hardware or products, loss of revenues or business interruption, special, punitive, indirect, incidental, exemplary, or consequential damages arising out of or related to the Agreement under any legal theory, even if Supplier knows of or should have known of the possibility of such damages. In no event will Supplier’s total cumulative liability arising out of or related to the Agreement exceed the total amount of fees received from Customer under the Agreement during the twelve (12) months immediately preceding such claim. This Section 9 will apply even if an exclusive remedy of Customer under the Agreement has failed of its essential purpose. Each party agrees that this section 9 is a material basis of the bargain between them.
Supplier shall take out and maintain the following minimum insurance at its expense for the duration of the License Term covering locations where Supplier is to perform Consulting Services on Customer’s premises: (i) Workers’ Compensation – as required by the statute of states where services are being performed; (ii) Comprehensive General Liability Insurance – $2,000,000 per occurrence/aggregate bodily injury and $2,000,000 per occurrence/aggregate property damage; and (iii) Automobile Liability Insurance – $1,000,000 per occurrence, bodily injury and property damage combined. Nothing in this agreement shall be deemed to preclude Supplier from selecting a new insurance carrier or carriers or obtaining new or amended policies at any time, as long as the above insurance coverage and limits are maintained. Supplier agrees to provide Customer with a certificate(s) of insurance evidencing such coverage within a reasonable time of the receipt of a written request for same.
11.1 Notice. Except as otherwise provided in this Agreement, all notices or other communications must be in writing and will be deemed to have been duly given (i) when delivered by hand (with written confirmation of receipt); or (ii) two (2) calendar days after being deposited for delivery with a nationally recognized overnight delivery service and addressed to the appropriate address set forth on the Order Form (or to such other address as a Party may designate by written notice to the other Party). All notices to Supplier shall be addressed to the attention of Legal Department with a copy to email@example.com.
11.2 Export Compliance. The Services and Software made available under this Agreement and any derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit users to access or use any Software or Service in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
11.3 Relationship of Parties. The Parties hereto are independent contractors. Nothing in the Agreement will be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the Parties.
11.4 Non-Solicitation. During the term of Agreement and for a period of twelve (12) months following its expiry or earlier, lawful termination, neither party shall directly solicit or approach in any way the other party’s employees or contract staff (“Restricted Persons”) with a view to: (i) Offer such Restricted Persons employment; or (ii) Solicit services from them on their own account; or (iii) Offer to them the opportunity to perform services substantially similar to any offered hereunder. For purposes of this Agreement, job postings, newspaper advertisements, and response to job inquiries unilaterally made by Restricted Persons shall not constitute direct solicitation, an attempt to induce, or any breach of this Agreement.
11.5 Government End-Users. Each of the components that constitute the Software and Documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth herein.
11.6 Anti-Corruption. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Supplier’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify the Legal Department at firstname.lastname@example.org.
11.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided Customer is current and in good standing with the terms of the Agreement including the payment of all fees. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination on behalf of Customer, Supplier shall refund any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.8 Audit Rights. Customer will keep and retain written books and records sufficient to document Customer’s compliance with this Agreement. During the license term and for two (2) years thereafter, Supplier or its representatives, may upon at least thirty (30) days’ written notice, inspect and audit records, computer systems, and premises of Customer during normal business hours to verify Customer’s compliance with the Agreement.
11.9 Governing Law and Venue. The Agreement will be governed by the laws of the State of California, excluding any conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. Any action or proceeding arising from or relating to the Agreement must be brought exclusively in a federal or state court located in Santa Clara County, California. Each Party irrevocably consents to the personal jurisdiction and venue in, and agrees to service of process issued by, any such court. Neither party will bring a legal action under this Agreement more than two years after the cause of action.
11.10 WAIVER OF JURY TRIAL. EACH OF SUPPLIER AND CUSTOMER EXPRESSLY, KNOWINGLY, VOLUNTARILY, AND FULLY WAIVES ANY AND ALL RIGHTS TO A JURY TRIAL IN ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS AGREEMENT OR ANY CLAIM OR ACTION IN CONNECTION WITH OR RELATED TO THIS AGREEMENT AND THE EVENT. The parties to this Agreement have read the Agreement, understand it, and agree that each has had the opportunity to have the Agreement reviewed by legal counsel.
11.11 Waiver, Modification, and Amendment. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Any amendment or modification to this Agreement must be in writing signed by both parties.
11.12 Order of Precedence; Construction. The parties agree that any term or condition stated in Customer’s purchase order or in any other Customer documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. The Section headings of this Agreement are for convenience and will not be used to interpret this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”
11.13 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.14 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. By signing the Order Form Customer agrees that (i) the Order Form will be governed by the terms and conditions of this Agreement and (ii) the appropriate fees will be timely paid.
These terms were last updated August 28, 2017. Previous Version