KOVERSE, INC. END USER LICENSE AGREEMENT

(For Evaluation and Testing)

IMPORTANT – READ THIS MESSAGE CAREFULLY BEFORE INSTALLING, USING OR OTHERWISE ACCESSING OR MANIPULATING THe SOFTWARE or Koverse-as-a-Service. BY INSTALLING, USING, OR OTHERWISE ACCESSING OR MANIPULATING THE SOFTWARE or Koverse-as-a-service, YOU (“you or “Licensee”) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS KOVERSE, iNC. END USER LICENSE AGREEMENT (fOR EVALUATION AND TESTING) (THE “eula”). If you are using the Services on behalf of an organization or entity (“Organization”), then you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have the authority to bind the Organization to this EULA. In that case, “you” or “Licensee” refers to you and that Organization. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE eula, DO NOT USE THIS SOFTWARE or koverse-as-a-service and return any software, documentation, and related materials to koverse.

IF YOUR ORGANIZATION HAS ENTERED INTO A LICENSE AGREEMENT WITH kOVERSE FOR THE USE OF THE SOFTWARE THAT SUPERCEDES THE TERMS AND CONDITIONS OF THIS EULA (A “COMMERCIAL AGREEMENT”), THEN THIS EULA DOES NOT APPLY AND YOUR USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS OF THE COMMERCIAL AGREEMENT.

 

AGREEMENT

NOW, THEREFORE, in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Definitions.

As used in this EULA:

1.1.Documentation” means any manuals, instructions, illustrations, guidelines, directions, samples, and any other documentation or information in written, electronic or any other media or format provided to Licensee along with the Koverse Software or Koverse-as-a-Service.

1.2.Intellectual Property Rights” means all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights, and all other proprietary rights.

1.3. Integrations” means integrations between the Koverse Software and Licensee’s software applications and third party applications, developed by Licensee as permitted hereunder.

1.4.Koverse” means Koverse, Inc., a Delaware corporation, located at 999 Third Avenue, Suite 700, Seattle, Washington, 98104.

1.5.Koverse-as-a-Service” means the proprietary web-based, hosted Koverse Platform software, including any Licensed Tools (and any modified, upgraded or successor version thereof) accessed via a web browser, along with the applicable Documentation.

1.6.Koverse Products” means (1) the licensed Koverse Software and any modified, upgraded, or successor version thereof thereof; and (2) Koverse-as-a-Service provided by Koverse under this EULA. The Koverse Products may include limited source files for specified purposes but does not otherwise include source code in any form, and Licensee acknowledge that the Licensee have no right to receive any source code.

1.7.Koverse Software” means the installed Koverse Platform software including any Licensed Tools, in object code form and any modified, updated or enhanced versions of such programs that Koverse may provide to Licensee pursuant to this EULA and the applicable Documentation.

1.8.Licensed Tools” means sample code and developer tools clearly designated for use for development purposes.

1.9.Support Services” means maintenance and support services furnished by Koverse to Licensee.

1.10.Term” means the term of the EULA as described in Section 9.1. (Term).

1.11. Other capitalized terms will have the meanings provided.

 

2. License Grant.

2.1. Grant of License.

  • 2.1.1. Koverse Software. Subject to Licensee’s compliance with all of the terms and conditions of this EULA, Koverse hereby grants to Licensee a limited, nonexclusive, nontransferable and revocable license, without right of sublicense, during the Term to access and use the Koverse Products provided by Koverse solely for internal testing, prototyping, and demonstrating for evaluation purposes, and not for commercial use (the “Evaluation”). In addition, the Licensed Tools may be used for purposes of developing Integrations in connection with the Evaluation. In the case of the Koverse-as-a-Service, access will be provided in a test environment that can be accessed through a web browser. In the case of the Koverse Software, the Koverse Software will be provided in an agreed upon compiled format and may be installed on one cluster of any size. The Koverse Software may contain open source that is subject to terms and conditions contained in the open source files.
  • 2.1.2. Limitations. No license for the Koverse Products is granted for any other purpose then as explicitly set forth and there are no implied licenses in this EULA. The Koverse Products are licensed, not sold, by Koverse to Licensee, and nothing in this EULA will be interpreted or construed as a sale or purchase of the Koverse Products.
  • 2.1.3. Restrictions and Conditions. Licensee will not, directly or indirectly through its, employees and/or contractors: (a) reproduce (except for the permitted back up copy), modify, translate, enhance, or create derivative works of the Koverse Products; (b) decompile, disassemble, reverse engineer the Koverse Products; (c) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Koverse Products; (d) “frame,” “mirror,” copy or otherwise enable third parties to use the Koverse Products (or any component thereof) as a service bureau or other outsourced service; (e) use the Koverse Products for the purpose of developing a product or service that competes with Koverse products and services; (f) circumvent or disable any security features or functionality associated with Koverse Products; or (g) use the Koverse Products in any manner prohibited by law.

2.2. Use of Contractors. Licensee may allow its contractors to use the Koverse Products, provided they are acting on Licensee’s behalf to exercise license rights granted in this EULA and further provided that Licensee is responsible for their compliance with this EULA in such use. Licensee have a written agreement with its contractors that strictly limits their right to use the Koverse Products and that otherwise protects Koverse’s intellectual property rights to the same extent as this EULA.

 

3. Ownership.

Licensee acknowledges and agrees that Koverse owns all right, title and interest in and to the Koverse Products, including without limitation all Intellectual Property Rights therein. Licensee agrees not to use Koverse’s trademarks or other business names for any purpose without the express prior written consent of Koverse, or to take any actions, which are harmful to or inconsistent with Koverse’s rights in its trademarks, service marks and trade names. Except as expressly set forth herein, Licensee will not acquire or otherwise be granted any rights or licenses under any copyrights, patents, trade secrets, trademarks or other intellectual property rights on account of this EULA.

 

4. Maintenance and Support Services.

4.1. Maintenance. Koverse may without obligation, in its sole discretion, provide additional modifications, upgrades, updates or new versions of the Koverse Products under this EULA.

4.2. Support. Koverse will be under no obligation to provide any specific Support Services. Support requests should be emailed to support@koverse.com.

 

5. Payment.

The fee for the evaluation and trial license during the Term shall be $0. To the extent Licensee retains installed Koverse Software or access to the Koverse-as-a-Service after the end of the Term, Licensee shall pay Koverse a fee equal to Koverse’s then-current list price and subject to Koverse’s then current Terms and Conditions, a copy of which shall be provided by Koverse upon request. All fees paid under this EULA shall be payable in U.S. dollars and are due within thirty (30) days of Koverse’s invoice. Excluding taxes based on Koverse’s income, Licensee is liable for all taxes, duties and customs fees associated with such fees, whether or not Koverse invoices Licensee for such taxes, duties or customs fees. Past due accounts shall be charged interest on a monthly basis, calculated at one and one-half percent (1.5%) per month of the unpaid balance or the maximum rate allowable by law. In no event shall Koverse’s failure to enforce this Section constitute a waiver of of Koverse’s rights under this Section or otherwise under this EULA.

 

6. Confidential Information and Feedback.

6.1. Obligations. Licensee agrees to hold the Koverse Products and any test data and any related documentation and any information relating to this EULA and the Koverse Products (including, without limitation, feedback and any information obtained by Licensee or its representatives regarding the operation or performance of the Software) (collectively referred to as the “Confidential Information”) in strict confidence and not to use or disclose the Confidential Information, in whole or in part, except as expressly permitted in this EULA or otherwise with the prior written consent of Koverse. Licensee may disclose the Confidential Information to employees of Licensee, but only to the extent they have a need to know to use the Koverse Products for the purposes of this EULA and Licensee has advised them that such information is Confidential. Licensee agrees to instruct any such employees in advance who will have access to the Koverse Products that they must comply with the restrictions set forth in this EULA with respect to the Software.

6.2. Exceptions. Licensee will have no obligation to maintain the confidentiality of any information which (a) is or becomes publicly available without breach of this EULA; (b) is rightfully received by Licensee from a third party without an obligation of confidentiality and without breach of this EULA; (c) is developed independently by Licensee without access to or use of the Confidential Information; or (d) has been approved for release by written authorization of Koverse. Koverse expressly acknowledges that Licensee may disclose (e.g. by demo) and discuss publically available versions of the Koverse Products and related publically available information.

6.3. Feedback. If Licensee provides suggestions for changes or improvements, or other feedback, to Koverse about the Koverse Products or related services, Koverse may use such information and feedback for any purpose without limitation and without obligation of any kind.

 

7. Indemnification.

Except for third party claims arising out of or in connection with Intellectual Property Rights, Licensee will defend, indemnify, and hold harmless Koverse, and its permitted assigns, from and against any and all losses, liabilities, claims, damages, actions, suits, proceedings, settlements, judgments, losses, costs and expenses (including without limitation reasonable attorney’s fees) arising out of or in connection with the use of the Koverse Products or Support Services of this EULA or the use of the results or output thereof by Licensee, its employees, agents and contractors.

 

8. Acknowledgements and Disclaimers.

8.1. Acknowledgement. Licensee understands, acknowledges and agrees that: (i) The Koverse Products licensed under this EULA may contain pre-release software. Any production version of the Koverse Software-as-a-Service or the Koverse Software released by Koverse may perform differently from the Koverse Software-as-a-Service or the Koverse Software provided under this EULA; (ii) Any subsequent agreement relating to use of the Koverse Products can only be made in writing, executed by duly authorized officers or representatives of both parties; and (iii) Licensee will bear responsibility for the accuracy and completeness of all data provided to Koverse or input into the Koverse Software or Koverse-as-a-Service (“Licensee Data”). Licensee will not submit data to Koverse-as-a-Service that is confidential in nature. Koverse will have no obligation to keep confidential data entered into Koverse-as-a-Service. Licensee represents that it has all necessary rights to use the Licensee Data in connection with its use of the Koverse Products.

8.2. Disclaimers. THE KOVERSE PRODUCTS AND ANY OTHER ASSOCIATED MATERIALS AND ANY SUPPORT SERVICES OR OTHER SERVICES THAT MAY BE PROVIDED BY KOVERSE HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND AND WITH ALL FAULTS. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH LICENSEE. KOVERSE AND ITS SUPPLIERS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES, DUTIES OR CONDITIONS OF OR RELATED TO: MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, ACCURACY OR COMPLETENESS OF RESPONSES, RESULTS, OR WORKMANLIKE EFFORT. IN ADDITION, KOVERSE AND ITS SUPPLIERS MAKE NO WARRANTY, DUTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT.

 

9. Limitations of Liability.

9.1. Limitations – Liability Cap. THE ENTIRE LIABILITY OF KOVERSE AND ANY OF ITS SUPPLIERS UNDER THIS AGREEMENT WILL BE LIMITED TO ACTUAL DAMAGES INCURRED BY COMPANY BASED ON REASONABLE RELIANCE UP TO THE AMOUNT OF five dOLLARS (U.S. $5.00). THE Disclaimers and LIMITATIONS IN THIS EULA [INCLUDING SECTIONS 7.2 (DISCLAIMERS) and 8 (LIMITATIONS of liability) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT OTHER PARTS OF THIS AGREEMENT RELY UPON THE INCLUSION OF THIS SECTION AND THE RESULTING ALLOCATION OF RISKS.

9.2. Indirect damages. IN NO EVENT WILL KOVERSE OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE EVEN IF KOVERSE OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

10. Term and Termination.

  • 10.1.1. Term. This EULA will commence on the earlier of the date this EULA is accepted by the Licensee or the date Licensee installs or otherwise accesses the Koverse Products and will remain in effect for a period of sixty (60) days unless terminated earlier upon written notice by one of the parties or unless the Term is extended in writing upon mutual agreement of the parties.
  • 10.1.2. Termination This EULA may be terminated by either party: (i) upon five (5) days written notice if the other party materially breaches any provision of this EULA and such breach remains uncured within such five (5) day period; or (ii) effective immediately, if the other party ceases to do business, or otherwise terminates its business operations; or (iii) effective immediately, if the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it; (iv) effective immediately, upon any breach of Section 2 or Section 6 of this EULA; or (v) by either party, upon thirty (30) days written notice.

10.2. Return of Software and/or related documents. Any rights to use or access the Koverse Products will cease upon termination. Licensee will, within two (2) days after the expiration or termination of this EULA, discontinue all use of the Koverse Products and return to Koverse or destroy (including purging from any system or storage media) any and all copies of the Koverse Software, Documentation, and any other Confidential Information, including any documentation relative thereto and any notes, feedback and other materials relating to the Software. If requested by Koverse, an officer of Licensee will certify in writing to Koverse that all copies of the Koverse Software and Documentation and Confidential Information have been returned to Koverse or destroyed.

10.3. Survival. The rights and obligations of the parties under Sections 1 (Definitions), 3 (Ownership), 5 (Payment); 6 (Confidential Information and Feedback), 8 (Indemnification); Acknowledgements and Disclaimers), 9 (Limitations of Liability), 10.3 (Survival), 11 (Audit); and 12 (General) will survive the expiration or termination of this EULA.

10.4. Government Restricted Rights. If the Licensed Software is licensed for use by the United States or for use in the performance of a United States government prime contract or subcontract, Licensee agrees that the Licensed Software is delivered as: (i) “commercial computer software” as defined in DFARS 252.227-7013, Rights in Technical Data – Noncommercial Items (Oct 1988), DFARS 252.227-7014 Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (Jun 1995), and DFARS 252.211-7015 Technical Data Commercial Items (May 1991); (ii) as a “commercial item” as defined in FAR 2.101; or (iii) as “restricted computer software” as defined in FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987); whichever is applicable. The use, duplication, and disclosure of the Licensed Software by the Department of Defense will be subject to the terms and conditions set forth in the accompanying license agreement as provided in DFARS 227.7202 (Oct 1998). All other use, duplication and disclosure of the Licensed Software and Documentation by the United States will be subject to the terms and conditions set forth in the accompanying license agreement and the restrictions contained in subsection (c) of FAR 52.227-19, Commercial Computer Software—Restricted Rights (Jun 1987), or FAR 52.227-14, Rights in Data — General Alternative III (Jun 1987).

 

11. Audit.

Licensee will, upon prior written notice from Koverse, provide Koverse reasonable access to Licensee’s premises, records, and personnel so that Koverse may audit and confirm that Licensee complies with this EULA. If an audit reveals any reproduction, use, or distribution of the Koverse Products that is not compliant with this EULA, Licensee will promptly comply with this EULA and make an additional payment as contemplated in this EULA, in addition to any other remedy available to Koverse. Licensee will promptly reimburse Koverse for its reasonable costs of conducting such audit.

 

12. General.

12.1. Compliance with Laws. Licensee agrees to comply with all applicable laws in connection with Licensee’s use of the Koverse Products, including but not limited to laws concerning privacy, export controls, and infringement.

12.2. Injunctive Relief. Licensee acknowledges that any breach of its obligations under this EULA with respect to the proprietary rights or Confidential Information of Koverse will cause Koverse irreparable injury for which there are inadequate remedies at law, and, therefore, Koverse will be entitled to equitable relief in addition to all other remedies provided by this EULA or available at law or in equity.

12.3. Legal Expenses. If legal action is taken by either Party to enforce its rights under this EULA, all costs and expenses incurred by the prevailing Party, including reasonable attorney fees and court costs, will be paid by the other Party.

12.4. Notices. Notices to Licensee will be delivered to Licensee (i) at its current address contained in Koverse’s account records by messenger, delivery service, or in the U.S. mail, postage prepaid, certified or registered, return receipt requested; (ii) by means of a notice, which may be a general notice, through Koverse-as-a-Service; or (iii) by electronic mail to Licensee’s administrator e-mail address on record in Koverse’s account information. Notices to Koverse will be sent by overnight or certified mail, return receipt requested, to Koverse, 999 Third Avenue, Suite 700, Seattle, Washington, 98104, Attention: CEO.

12.5. Assignment. Licensee may not assign its rights or delegate its obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of Koverse. Any attempted assignment or delegation without Koverse’s written consent will be void. The rights and liabilities of the parties under this EULA will bind and inure to the benefit of the parties’ respective successors and permitted assigns.

12.6. Waiver and Modification. Failure by either party to enforce any provision of this EULA will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment or other modification of any provision of this EULA will be effective only if in writing and signed by the parties.

12.7. Severability. If for any reason a court of competent jurisdiction finds any provision of this EULA to be unenforceable, that provision of the EULA will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this EULA will continue in full force and effect.

12.8. Controlling Law. This EULA will be construed and controlled by the laws of the State of Washington, and each party irrevocably consents to exclusive jurisdiction and venue in the federal and state courts sitting in King County, Washington. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act is expressly disclaimed. Each party waives all defenses of lack of personal jurisdiction and forum non-conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. In any action to enforce any right or remedy under this EULA or to interpret any provision of this EULA, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses.

12.9. Headings. Headings used in this EULA are for ease of references only and will not be used to interpret any aspect of this EULA.

12.10. Entire EULA. This EULA constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter. This EULA may be updated by Koverse from time to time and by continuing to use and access the Koverse Software or Koverse-as-a-Service after Licensee has been provided with such updated terms, Licensee is agreeing to such terms.

 

EULA dated April 22, 2016