End User License Agreement

This End User License Agreement (“EULA”) and any applicable supplemental terms incorporated herein (together, this “Agreement”) are entered into between the Kobai, Inc. and the entity named on the Order Form (as defined below) that accepted this Agreement. This Agreement may be accepted by (i) manual signature or electronic signature; (ii) by signing and Order Form that incorporates the terms of this Agreement; or (iii) electronically accepting the terms by clicking an accept button.  Any use of the Software indicates that Customer has read, understood and accepted this Agreement. If Customer does not accept this Agreement, Customer must not use the Software and must return the Software to Kobai prior to installation.

1. Scope of Agreement.  This Agreement sets forth the terms and conditions under which Licensee may purchase from Kobai: (i) licenses to use the Kobai software set forth on an Order Form, and (ii) Software Support (as defined below).  The Software and support ordered by Licensee will be specified in one or more order forms (each, an “Order Form”) entered into by the parties pursuant to this Agreement.  Each Order Form will be governed by the terms of this Agreement.  The terms on any other purchase order, confirmation, or similar document submitted by Licensee to Kobai will have no effect and are hereby rejected.  
2. Software.

1. License Grant.  Subject to Licensee’s compliance with the terms and conditions of this Agreement, Kobai hereby grants Licensee a limited, personal, non-transferable, non-sublicensable, non-exclusive license during the term of this Agreement, to: (i) use the Software in accordance with any usage metrics and conditions as set forth in the applicable Order Form; (ii) use the user documentation accompanying the Software in conjunction with Licensee’s authorized use of the Software.  The Software will be made available to Licensee under this Agreement in object code form only; no source code is provided to Licensee under this Agreement.  The Software (and any future Software error fixes or minor enhancements or new versions that Kobai may make available to Licensee from time-to-time and which are included in the term “Software”) will be deemed accepted upon Kobai making the Software available to Licensee.
2. Restrictions.  Licensee may not, and will not permit or induce any third party to: (i) decompile, reverse engineer, disassemble or otherwise attempt to reconstruct or discover the source code, underlying ideas or algorithms of any components of the Software; (ii) alter, modify, translate, adapt in any way, or prepare any derivative work based upon the Software; (iii) rent, lease, network, loan, pledge, encumber, sublicense, sell, distribute, disclose, assign or otherwise transfer the Software or any copy thereof; or (iv) use the Software in commercial timesharing, rental or other sharing arrangements; (v) remove any proprietary notices from the Software or any related documentation or other materials furnished or made available hereunder.  In addition, Licensee agrees to comply with all applicable local, state, national, and international laws, rules and regulations applicable to Licensee’s use of the Software.  
3. Third Party Software and Integrations.  Kobai may, in its sole discretion, make available third-party open source software (“Third Party Software”), embedded in, or otherwise provided with, the Software.  Third Party Software is expressly excluded from the defined term “Software” as used throughout this Agreement.  Licensee’s use of the Third Party Software is subject to the applicable third party license terms which can be viewed at https://www.kobai.io/kobai-oss-license-information. 
4. Proprietary Rights.  Kobai or its licensors retain all right, title and interest in and to the Software and related documentation and materials, including, without limitation, all patent, copyright, trademark, and trade secret rights, embodied in, or otherwise applicable to the Software, whether such rights are registered or unregistered, and wherever in the world those rights may exist. Licensee shall not commit any act or omission, or permit or induce any third party to commit any act or omission inconsistent with Kobai’s or its licensors’ rights, title and interest in and to the Software and the intellectual property rights embodied therein or applicable thereto.  All materials embodied in, or comprising the Software, including, but not limited to, graphics, user and visual interfaces, images, code, applications, and text, as well as the design, structure, selection, coordination, expression, "look and feel", and arrangement of the Software and its content, and the trademarks, service marks, proprietary logos and other distinctive brand features found in the Software (“Kobai Marks”), are all owned by Kobai or its licensors.  Licensee is expressly prohibited from using the Kobai Marks other than as part of the authorized use of the Software.  Title to the Software shall not pass from Kobai to Licensee, and the Software and all copies thereof shall at all times remain the sole and exclusive property of Kobai. There are no implied rights or licenses in this Agreement.  Except for the limited license rights set forth in this Agreement, all rights are expressly reserved by Kobai.  
5. Feedback. Licensee hereby grants Kobai a perpetual, irrevocable, royalty free, worldwide license to use any Feedback (as defined below) that Licensee provides to Kobai, without compensation, without any obligation to report on such use, and without any other restriction. Notwithstanding Section 6 (Confidential Information), Feedback will not be considered Licensee’s Confidential Information or its trade secret. “Feedback” means any suggestion or idea related to any of Kobai’s products or services.
6. Inspection Right.  During the term of this Agreement and for one (1) year thereafter, Kobai or its designated agent may inspect Licensee’s facilities and records to verify Licensee’s compliance with the terms of this Agreement.  Any such inspection will take place only during Licensee’s normal business hours and upon at least one (1) day prior written notice from Kobai.  Licensee shall reasonably cooperate with such audit and shall make such personnel and records available as Kobai may reasonably request.  Kobai will give Licensee written notice of any non-compliance, including any use of the Software or services beyond that authorized under this Agreement and, without limiting Kobai’s remedies arising from such unauthorized use, Licensee shall promptly: (i) cease such unauthorized use; (ii) pay Kobai any additional fees due to the extent Licensee’s use of the Software has exceeded the scope purchased by Licensee; and (iii) reimburse Kobai’s reasonable, documented costs incurred in conducting such inspection.  Audits may be conducted no more than twice per year.

2. Services.  Kobai will provide its standard support for Software licensed by Licensee under  this Agreement (“Software Support”).
3. Fees and Payment Terms.  

1. Fees.  The fees payable by Licensee and due dates for the Software licenses, Software Support, and the applicable Software license period, will be set forth in each Order Form.  Recurring fees, if any, shall be invoiced and paid in advance as set forth in the applicable Order Form.  Any non-recurring fees for shall be invoiced and payable on the dates set forth in the applicable Order Form.  New major versions of the Software which include new features or functions may be purchased by Licensee pursuant to a new Order Form.
2. Payment Terms.  All payments under this Agreement shall be made in currently available funds and payments may be made by check, wire transfer, or by such other means as Kobai may specify from time-to-time.  Unless otherwise expressly agreed by Kobai and specified in the applicable Order Form, all fees are payable in the currency of the United States of America.  All fees specifically exclude (and Licensee is responsible for) any and all applicable sales, use and other taxes, other than taxes based on Kobai’s income.  Any undisputed amounts due under this Agreement which are not paid within thirty (30) calendar days of their due date shall be subject to a late payment charge of the lower of: (i) one percent (1%) per month (and shall thereafter bear interest at a rate of twelve percent (12%) per annum until paid); and (ii) the highest interest rate permitted by applicable law. Each party is responsible for its own expenses under this Agreement.  All fees payable under this Agreement are non-refundable.  Kobai will not issue any invoices for the fees due hereunder unless expressly requested by Licensee; provided however, that all fees are automatically due as set forth in this Section 4 irrespective of the date of issue of any invoice.

2. Term & Termination.

1. Term.  Subject to termination as set forth in this Section 5, the term of this Agreement will commence on the date it is accepted by Licensee (the “Effective Date”) and continue for so long as an Order Form is in effect.  The term of each Software license and the term of Software Support (and the corresponding fees for both) will be as set forth in the Order Form.  This Agreement shall automatically terminate upon the expiration of the last Order Form hereunder.           
2. Termination.  Either party may terminate this Agreement immediately without further notice if the other party breaches its obligations, including but not limited to past due payments, under this Agreement and does not remedy such breach within thirty (30) calendar days of the date of receipt of written notice of such breach from the non-breaching party.  Notwithstanding the foregoing, Kobai may terminate this Agreement immediately with notice if Licensee breaches its obligations in Sections 2(a)-(d) above. 
3. Effects of Termination.  Upon the termination of this Agreement and/or the applicable Order Form for any reason: (i) the licenses granted under this Agreement in respect of the Software shall immediately terminate; (ii) Kobai’s obligations to perform the Technical Support and/or Consulting Services shall immediately terminate; (iii) Licensee shall pay to Kobai the full amount of any outstanding fees due hereunder; and (iv) within ten (10) calendar days of such termination, each party shall destroy or return all Confidential Information of the other party in its possession, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement.  Notwithstanding the foregoing, the following terms shall survive the termination of this Agreement, together with any other terms which by their nature are intended to survive such termination: Sections 2(b) (Restrictions), 2(d) (Proprietary Rights), 2(e) (Inspection Right), 4 (Fees & Payment Terms), 5(c) (Effects of Termination), 6 (Confidentiality), 7(c) (Disclaimer of Warranties), 8 (Indemnification), 9 (Limitation of Liability) and 11 (General).  

2. Confidentiality.  “Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that is marked as confidential or proprietary.  The Software and any non-public  information, of a party, including all information about this Agreement and the fee structure, shall be deemed Confidential Information, whether or not marked. Confidential Information does not include information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (b) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure.  Licensee and Kobai will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party's Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care.  The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order.  Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.
3. Warranties & Disclaimer of Warranties.  

1. General Representations and Warranties.  Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement and to carry out its obligations under this Agreement; and (ii) it has complied, and will in the future comply, with all applicable laws, rules and regulations in connection with the performance of this Agreement.  
2. Limited Software Warranty.  Kobai represents and warrants to Licensee that: (i) the first version of the Software licensed under the each Order Form will materially conform to Kobai’s published documentation for a period of ninety (90) days from the date Licensee is first permitted to access and use the Software and (ii) any subsequent major versions of the Software licensed under a new Order Forms will materially conform to Kobai’s published documentation for a period of sixty (60) days from the date Licensee is first permitted to access and use that version of the Software.  For the avoidance of doubt: (a) if Licensee purchases or receives a new version of the Software, the warranty for the first version of the Software licensed under the initial Order Form shall cease to apply and (b) no warranty shall apply for the first version of the Software licensed under the initial Order Form during the term of a renewal Order Form.  Licensee’s sole and exclusive remedy, and Kobai’s sole and exclusive liability for any breach of this warranty will be, at Kobai’s sole discretion, to fix and remedy the Software with a bug fix or minor enhancement on condition that Licensee promptly notifies Kobai in writing of any alleged breach of this warranty within such warranty period.  This warranty is null and void to the extent the Software: (i) fails to conform with this warranty as a result of its use with any third party hardware or software; or (ii) is used for an unintended purpose, is used other than in accordance with its published documentation or specifications, or (iii) is otherwise used in breach of this Agreement.
3. Disclaimer of Warranties.  EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 7, (I) THE SOFTWARE, SOFTWARE SUPPORT AND SUPPLEMENTAL SUPPORT ARE PROVIDED TO LICENSEE ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND; AND (II) KOBAI EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. KOBAI DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KOBAI OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY.  SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO LICENSEE.  IN SUCH EVENT, KOBAI’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND SUPPORT WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.  

2. Indemnification.

1. Indemnification by Licensee.  Licensee shall indemnify, defend, and hold harmless Kobai, and its officers, directors, employees, subsidiaries, and affiliates (each, a “Kobai Party”), from and against all suits, proceedings, claims, damages, liabilities, costs, payments, and expenses (including reasonable attorneys' fees) asserted against Kobai or incurred by Kobai, in connection with any actual or alleged claim arising out of, or relating to: (i) Licensee’s breach of this Agreement and/or any terms and conditions or other agreement applicable to any Third Party Applications; (ii) Licensee’s violation of any applicable law, rule or regulation; (iii) Licensee’s use of the Software and/or Services, (except to the extent Kobai is responsible for the event giving rise to Licensee’s liability under this Section 8(a)); and (iv) Licensee’s gross negligence, fraudulent misrepresentation or willful misconduct.
2. Indemnification by Kobai.  Kobai will indemnify, defend and hold harmless Licensee, and its officers, directors, employees, subsidiaries, and affiliates (each a “Licensee Party”), from and against all suits, proceedings, claims, damages, liabilities, costs, payments, and expenses (including reasonable attorneys' fees) asserted against any Licensee Party by a third party or incurred by any Licensee Party in connection with any actual or alleged claim made by a third party, arising out of or relating to: (i) Licensee’s use of the Software as authorized herein infringing or misappropriating a third party’s copyright, trade secret or patent issued as of the Effective Date.  Kobai shall have no indemnity obligation to the extent that the infringement arises out of: (1) use of other than the then-current, unaltered version of the Software, unless the infringing portion is also in the then-current, unaltered release; (2) any Third Party Software or any Third Party Applications; (3) based on Licensee’s use of the Software and/or Services other than in accordance with this Agreement or the applicable documentation; (4) Licensee’s combination of the Software with software or hardware not provided and/or expressly approved by Kobai in writing (but excluding any software integrations developed by Kobai for Licensee under this Agreement that may be combined with the Software); or (5) Licensee’s modifications of the Software not approved in writing by Kobai.  If Licensee’s use of the Software is enjoined or Kobai reasonably believes Licensee’s use of the Software may be enjoined, Kobai may elect to obtain a license for Licensee to continue using the Software or modify the Software so that it no longer infringes.  The foregoing shall be Licensee’s sole and exclusive remedy and Kobai’s sole and exclusive obligation with respect to any claim of intellectual property infringement.
3. Procedure.  The indemnifying party shall have the control of the defense and related settlement of any claims.  The indemnified party shall provide the indemnifying party with prompt written notice of the claim.  The indemnified party and its counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the indemnifying party in the defense or settlement of any claim.  The indemnifying party shall not in any event, consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of any indemnified party without the prior written consent of each relevant indemnified party (such consent not to be unreasonably withheld or delayed).  Any indemnified party may participate and retain its own counsel at its own expense.

2. Limitation of Liability.

1. Consequential Damages Waiver.  EXCEPT WITH RESPECT A PARTY’S BREACH OF CONFIDENTIALITY, A PARTY’S MISUSE OF  THE OTHER PARTY’s INTELLECTUAL PROPERTY, UNDER NO CIRCUMSTANCES, SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. Limitation of Damages.  EXCEPT WITH RESPECT TO CLAIMS OF INDEMNITY, BREACH OF CONFIDENTIALITY, LICENSEE’S MISUSE OF A PARTY’s INTELLECTUAL PROPERTY, IN NO EVENT SHALL A PARTY’S TOTAL CUMULATIVE LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, OR OTHERWISE) EXCEED \ THE TOTAL AMOUNT OF FEES PAID BY LICENSEE TO KOBAI DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE KOBAI PARTIES’ LIABILITY.  NOTWITHSTANDING ANYTHING IN THIS AGREEMENT OT THE CONTRARY, A PARTY’S LIABILITY FOR INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE GREATER OF (I) TWO TIMES THE TOTAL AMOUNT OF FEES PAID BY LICENSEE TO KOBAI DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY OR (II) $1,000,000.
3. Failure of Essential Purpose.  THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO LICENSEE.  IN SUCH EVENT, THE LIABILITY OF THE KOBAI PARTIES FOR SUCH DAMAGES WITH RESPECT TO THE SOFTWARE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.  The sections of this Agreement that address indemnification, limitation of liability and the disclaimer of warranties allocate the risk between the parties.  This allocation of risk is an essential element of the basis of the bargain between the parties.

2. Government Rights.  The Software licensed to Licensee under this Agreement is "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1).  If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors.  If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
3. General.  

1. Licensee acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Software.  Licensee agrees that it will not export or re-export the Software without the appropriate United States or foreign government licenses or permits and without explicit written permission of Kobai. 
2. This Agreement, including all attachments, shall constitute the entire agreement between Kobai and Licensee relating to the subject matter hereof and shall supersede all prior negotiations, agreements, and understandings between the Parties. No waiver of any provision of this Agreement shall be effective unless made in writing.  In addition, no waiver by either Party of any breach of any provision of this Agreement shall be construed as a waiver of any subsequent breach or as a continuing waiver of such breach of this Agreement.  In addition, no failure to enforce any contract term shall be deemed a waiver of future enforcement of that or any other term.  
3. This Agreement may be executed in two (2) counterparts, both of which taken together shall constitute one (1) single Agreement between the Parties.  The parties hereto agree that a version of this Agreement transmitted by means of Electronic Message or Electronic Record (electronic mail, electronic data interchange, or facsimile), once duly signed by the authorized representatives of each party, shall constitute a binding agreement and shall have the same force and effect as a document bearing original signatures.  No modifications or additions to this Agreement shall be binding on either Party unless in writing and signed by the Party against whom enforcement is sought.  In the event of any conflict between the provisions of this Agreement and any Order Form hereto, the conflicting provisions shall govern in the following order: (i) the Order Form, (ii) this Agreement.  The provisions of this Agreement shall be severable.  If any provision of this Agreement is held invalid or unenforceable in any relevant jurisdiction, then (i) such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of the Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.  Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, (ii) the application of such provision in any other circumstances shall not be affected, and (iii) the application of the remaining provisions of this Agreement shall not be affected by such application. 
4. This Agreement may not be assigned by either Party without the express prior written consent of the other Party. Any attempted assignment without such consent will be null and void and of no effect, except that, upon written notice to the other party, either party may assign all or portions of this Agreement to a subsidiary or successor to its business (whether by merger, a sale of all or substantially all of its assets relating to this Agreement, a sale of a controlling interest of its capital stock, or otherwise)  
5. No remedy or election of remedy under this Agreement shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or equity.  This Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions.  The United Nations Convention on Contracts for the International Sale of Goods in its entirety is expressly excluded from this Agreement.  Any action or proceeding arising from or relating to this Agreement must be brought in the courts in Santa Clara County, California