KUBARU SOFTWARE LICENSE AGREEMENT
This Kubaru Software License Agreement (the “Agreement“) is a legal agreement between Customer (as defined below) and Northwest Cloud Solutions, LLC, dba Kubaru (“Kubaru“) that sets the terms and conditions for use of the Software (as defined below). By (a) installing or using the Software, (b) signing and submitting an Order Form (as defined below) that references this Agreement, or (c) paying an invoice issued by Kubaru for the installation or use of the Software (each a “Binding Action“), Customer shall be bound by the terms of this Agreement. “Customer” means the individual person or entity who takes a Binding Action and the individual person’s or entity’s Affiliates. If an individual person takes a Binding Action for and on behalf of an entity, the individual person represents and warrants that they are authorized to bind the entity and its Affiliates to this Agreement.
1. DEFINITIONS
1.1. “Affiliate” means, with respect to any specified person or entity, any other person or entity that controls, is controlled by, or is under common control with the specified person or entity.
1.2. “Documentation” means the user guides, technical specifications, software release notes, and other materials related to the Software and provided by Kubaru, including without limitation the materials found at https://kubaru.io/help/.
1.3. “Intellectual Property Rights” means all proprietary information, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, copyrights, know-how, and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service of the Software.
1.4. “License” is defined in Section 2.1.
1.5. “Order Form” means a Kubaru Order Form that Customer signs and submits to Kubaru to order a License for a specified number of Users to access and use the Software, and pursuant to which Customer agrees to pay the Fees (as defined in Section 3.1 below).
1.6. “Party” means, depending upon the context, Kubaru or Customer, and “Parties” means Kubaru and Customer.
1.7. “Renewal Date” means, with respect to any Subscription Term, the date immediately following the expiration of the Subscription Term and on which a new Subscription Term will begin if this Agreement is renewed pursuant to Section 4.1.
1.8. “Salesforce Platform” means the customer relationship management (“CRM”) platform provided by Salesforce, Inc.
1.9. “Software” means the Kubaru software application which is a managed package that can only be installed on the Salesforce Platform.
1.10. “Subscription Term” means the period defined on an Order Form or invoice during which Customer will have the License for its Users to use the Software and each successive period of time that begins on a Renewal Date pursuant to Section 4.1.
1.11. “User” means an employee, agent, or contractor of Customer to whom Customer assigns a User License.
1.12. “User License” means a User’s exclusive ability and authorization to use the Software under the License granted in this Agreement.
2. GRANT OF LICENSE
2.1. Grant. Kubaru grants to Customer and Customer accepts a limited, non-exclusive, non-transferable (except as provided in this Agreement), and non-sublicensable license to use the Software which allows the number of Users listed in an Order Form or invoice to use the Software concurrently (the “License“), subject to the provisions of this Agreement. User Licenses cannot be shared among or between Users. However, Customer may reassign User Licenses at any time to change Users.
2.2. Additional Users. Customer may increase the number of Users and the corresponding number of User Licenses at any time by contacting Kubaru. The Fee for additional Users will be prorated based on the amount of time remaining in the then-current Subscription Term.
2.3. Customer Responsibilities. Customer will (a) use the Software only in a manner and for the purposes for which the Software was designed, (b) use the Software solely for its own internal business purposes, (c) use commercially reasonable efforts to prevent unauthorized access to the Software, (d) notify Kubaru promptly of any unauthorized access to the Software, and (e) not use the License or the Software to create competing products or services. Customer represents and warrants that the individual person who took the Binding Action was authorized to bind Customer to this Agreement.
2.4. Restrictions. Customer may not: (a) disassemble, decompile, reverse engineer, or modify the Software; (b) copy (in whole or in part) or create derivative works based on the Software; or (c) license, sublicense, sell, transfer (except as provided in this Agreement), distribute, or otherwise make the Software available to a third party.
2.5. Intellectual Property Rights. Other than the License to use the Software, all ownership, rights, title, and interest in all copyright, trademarks, and all other Intellectual Property Rights, as well as distribution rights of the Software remain exclusively with Kubaru. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
3. FEES AND PAYMENT
3.1. Fees. Customer shall pay Kubaru the fees specified in all Order Forms and invoices (“Fees“). On or about each Renewal Date, Kubaru will issue Customer a new invoice. All Fees are quoted and payable in U.S. currency.
3.2. Payment. Unless otherwise stated in an Order Form or invoice, all Fees shall be due and payable in full within thirty (30) days of the invoice date. All payments are nonrefundable. Any decrease in the number of Users and User Licenses will not lower the Fees until the next Renewal Date.
3.3. Interest on Late Payments. All Fees not paid by the date due shall bear interest at the lesser of one and one half percent (1.5%) per month or the maximum rate of interest allowed by law.
3.4. Suspension for Non-Payment. Kubaru reserves the right to suspend access to the Software if any payment due from Customer is more than fifteen (15) days past due. Unless Kubaru terminates this Agreement for cause, Kubaru shall reinstate access to the Software after Customer pays all past-due amounts and late fees. Kubaru’s suspension of access to the Software shall not waive any right Kubaru has to full payment of the amounts due and all late fees.
3.5. Taxes. Unless otherwise stated in an Order Form or invoice, Fees do not include state, local, or other taxes. Customer is responsible for paying all sales, use, and value-added taxes (“Sales Tax“) (which exclude income taxes) arising from this Agreement. If Kubaru has a legal obligation to pay or collect any Sales Tax for which Customer is liable under this Agreement, Kubaru will add the Sales Tax to Customer’s invoices, unless Customer provides Kubaru with a valid certificate from the applicable taxing authority that shows Customer is exempt from the Sales Tax.
4. TERM AND TERMINATION
4.1. Term. The initial term of this Agreement shall be congruent with the initial Subscription Term. After the initial Subscription Term expires, this Agreement will automatically renew for successive Subscription Terms on the applicable Renewal Dates, unless either Party gives written notice of nonrenewal to the other Party at least thirty (30) days before a Renewal Date or this Agreement is otherwise terminated.
4.2. Termination. Either Party may terminate this Agreement immediately if the other Party: (a) breaches any material obligation under this Agreement and such breach is not cured within thirty (30) days of receipt of written notice thereof; (b) becomes insolvent, or is named a debtor in bankruptcy in a proceeding that is not dismissed within ninety (90) days, or voluntarily seeks protection under any bankruptcy or insolvency law; or (c) makes an assignment of its assets for the benefit of its creditors.
4.3. Actions Upon Termination. When this Agreement terminates: (1) The License granted to Customer under this Agreement shall immediately terminate; (2) Customer shall promptly uninstall the Software; (3) Customer shall pay all outstanding Fees and amounts owed to Kubaru as of the date of termination; and (4) Kubaru may cease performance of Kubaru’s obligations under this Agreement, without liability to Customer.
4.4. Survival. The provisions of this Agreement which by their plain meaning and context should survive the termination or expiration of this Agreement, including without limitation Sections 5, 6, 7, 8, and 9 of this Agreement, shall survive termination of this Agreement and shall remain binding on the Parties.
5. WARRANTIES AND DISCLAIMERS
5.1. LIMITED WARRANTY. KUBARU WARRANTS THAT THE SOFTWARE, IN UNMODIFIED FORM AND WHEN USED AS AUTHORIZED BY THIS AGREEMENT, WILL CONFORM IN ALL MATERIAL RESPECTS TO THE DOCUMENTATION. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS LIMITED WARRANTY SHALL BE FOR KUBARU TO (A) CORRECT ANY NON-CONFORMING ASPECT OF THE SOFTWARE, OR (B) TERMINATE THIS AGREEMENT AND CUSTOMER’S ACCESS TO THE SOFTWARE AND ISSUE CUSTOMER A REFUND OF ANY PREPAID FEES COVERING THE REMAINDER OF THE SUBSCRIPTION TERM AFTER THE EFFECTIVE DATE OF TERMINATION.
5.2. DISCLAIMER: EXCEPT AS EXPRESSLY PROVIDED HEREIN, KUBARU PROVIDES THE SOFTWARE “AS IS”, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KUBARU MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE AND/OR RELATED DOCUMENTATION. KUBARU DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SOFTWARE.
6. LIMITATION OF LIABILITY
6.1. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOST REVENUE, DATA LOSS, BUSINESS INTERRUPTIONS, PROCUREMENT COST OF SUBSTITUTE GOODS OR SOFTWARE), WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO THE EQUITABLE REMEDY OF DISGORGEMENT.
6.2. EXCEPT WITH RESPECT TO (A) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, (B) STATUTORY DAMAGES FOR A PARTY’S MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (C) A PARTY’S KNOWING OR INTENTIONAL MISAPPROPRIATION OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (D) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL EXCEED THE FEES ACTUALLY PAID OR OWED BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE, THE AMOUNT PAID OR OWED FOR THE FIRST 12-MONTH PERIOD).
7. INDEMNITY
7.1. Kubaru will defend Customer against any claim alleging that the Software, when used in accordance with this Agreement, infringes a third party’s intellectual property rights, and will indemnify Customer from any damages, costs, and expenses (including reasonable attorneys’ fees) awarded against Customer as a result of, or for amounts paid by Customer in settlement of, such claim, provided that Customer (a) promptly gives Kubaru written notice of the claim, (b) gives Kubaru sole control of the defense and settlement of the claim (Kubaru may settle a claim if Customer is not required to admit liability and Customer is not required to contribute or pay any amount towards the settlement), and (c) provides Kubaru reasonable assistance, at Kubaru’s expense. Kubaru may, at its sole option and expense: (i) modify or replace the Software so that it is no longer infringing but continues to provide comparable functionality, (ii) obtain a license for Customer’s continued use of the Software, or (iii) terminate this Agreement and Customer’s access to the Software and refund any prepaid Fees covering the remainder of the Subscription Term after the effective date of termination. Kubaru will have no liability for any claim attributable to (1) the modification of the Software by any party other than Kubaru, (2) use of the Software in combination with any products or services not approved by Kubaru, or (3) use of the Software in a manner inconsistent with this Agreement.
8. CONFIDENTIALITY
8.1. Definition. “Confidential Information” means all information disclosed by a Party (“Discloser“) to the other Party (“Recipient“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer data; Kubaru’s Confidential Information includes the Software and Documentation; and Confidential Information of each Party includes the terms of this Agreement, pricing and other terms set forth in Order Forms and invoices, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (b) was known to the Recipient prior to its disclosure by the Discloser without breaching any obligation owed to the Discloser; (c) is received from a third party without breaching any obligation owed to the Discloser; or (d) was independently developed by the Recipient as demonstrated by clear and convincing evidence.
8.2. Confidentiality Obligations. The Recipient will: (a) protect the Discloser’s Confidential Information using commercially reasonable efforts and no less than the same efforts it uses to protect its own Confidential Information; (b) only use the Discloser’s Confidential Information to exercise its rights and fulfill its obligations under this Agreement; and (c) not disclose the Discloser’s Confidential Information without the Discloser’s prior consent, except to those affiliates, contractors, agents, and professional advisors who have a need to know it and have agreed in writing (or, in the case of professional advisors, are otherwise bound) to keep it confidential on terms comparable to those under this Section. The Recipient may disclose the Discloser’s Confidential Information when and to the extent required by law or legal process, but only after the Recipient, if permitted by law, uses reasonable efforts to notify the other Party.
8.3. Disclosure of Software Constitutes Incurable Material Breach. Customer acknowledges and agrees that any disclosure of the Software to a third party in violation of the terms of this Agreement constitutes a material, incurable breach of this Agreement and shall result in the automatic termination of this Agreement and the immediate termination of the License granted to Customer under this Agreement. Customer further agrees that it shall be strictly liable for all damages to Kubaru that result from any disclosure of the Software to any third party.
9. GENERAL
9.1. Relationship of the Parties. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.
9.2. Assignment/Sublicense. Customer shall not, directly or indirectly, by operation of law or otherwise, transfer or assign the Software or this Agreement, or transfer, assign or sublicense the License granted hereunder, in whole or in part, without having secured the prior written consent of Kubaru, which consent shall be at Kubaru’s sole and absolute discretion. Any attempted assignment, transfer, or sublicense in violation of this Section 9.2 shall be void.
9.3. Notices. All notices required to be given pursuant to this Agreement shall be transmitted either by registered mail, certified mail, or overnight mail. Notices to Customer will be sent to the billing address provided in the most recent Order Form or invoice. Notices to Kubaru should be sent to 12725 SW Millikan Way Suite 300, Beaverton, OR 97005. Either Party may change its address by giving notice to the other Party.
9.4. Compliance with Laws. Each Party shall comply with all applicable state, federal, and local laws, executive orders and regulations in the performance of its obligations under this Agreement.
9.5. Headings. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference only and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the provisions to which they appertain.
9.6. Entire Agreement. This Agreement and the Order Form(s) constitute the entire agreement between the Parties and supersede all prior agreements and understandings between them, whether written or oral, relating to the subject matter of this Agreement. This Agreement may not be supplemented, explained, or interpreted by any evidence of trade usage or course of dealing.
9.7. Modification or Amendment. No modification to, amendment of, or other change in this Agreement shall be binding on either Party unless it is in writing and signed by authorized representatives of both Parties.
9.8. Waiver. No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the waiving Party, nor shall any such waiver, if made, constitute a waiver of any subsequent breach of the same or of any other provision of this Agreement.
9.9. Force Majeure. Neither Party shall be liable to the other by reason of any failure of performance hereunder (except obligations to pay) if such failure is caused by events beyond such Party’s reasonable control, despite the reasonable efforts, and without the fault or negligence of such Party. A Party experiencing such an event shall give as prompt notice as possible under the circumstances.
9.10. Equitable Relief. The Parties acknowledge and agree that there may be no adequate remedy at law for the failure of the other Party to comply with the material provisions of this Agreement, including, without limitation, the confidentiality provisions of Section 8. The Parties agree that, in the event of any such failure, the non-breaching Party shall be entitled to equitable relief by way of temporary restraining order, temporary injunction, and permanent injunction, in addition to such other and further relief as any court of competent jurisdiction may deem proper, without having to post a bond or demonstrate the lack of an adequate remedy at law.
9.11. Remedies Cumulative. Each right and each remedy of Kubaru and Customer under this Agreement is cumulative and in addition to all other rights and remedies available under this Agreement and at law or in equity.
9.12. Fees and Expenses. If either Party institutes an action to enforce this Agreement or any of its terms, the prevailing Party shall also be entitled to recover all of its costs, expenses, reasonable attorneys’ fees, witnesses’ fees, and consultants’ fees.
9.13. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute but one instrument.
9.14. Jurisdiction and Venue. Should any claim or controversy arise between the Parties under the terms of this Agreement or in furtherance of this Agreement, such claim or controversy shall be brought exclusively in the state or federal courts located in Portland, Oregon, and such courts shall be the only forums therefor. Kubaru and Customer hereby submit to the jurisdiction of such courts and waive any defense or argument that venue in such courts is inconvenient or improper.
9.15. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Oregon without reference to any jurisdiction’s choice of law rules or principles that would cause any other jurisdiction’s laws to apply. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
9.16. Severability. If any provision of this Agreement is held invalid or unenforceable under any applicable law, such invalidity or unenforceability will not affect any other provision of this Agreement that can be given effect without the invalid or unenforceable provision, and this Agreement shall be construed as if the invalid or unenforceable provision had not been contained herein.