This Kwanzoo Software License Agreement (“License Agreement”) is an addendum to a Kwanzoo Growth Platform Agreement, signed between the parties (the “Agreement”) and shall be referenced and included in such an Agreement. All Kwanzoo Program executions require access to the Kwanzoo B2B Growth Platform (“Software”). This License Agreement shall additionally apply to all users who access the Software for a limited duration under a FREE Proof-of-Concept (POC) license from Kwanzoo.
WHEREAS Licensor desires to license the Software to deliver the Pipeline Growth programs described in the Agreement hereto to Licensee; and
WHEREAS Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this License Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, The Parties agree as follows:
Definitions.
- “Software” means the Kwanzoo B2B Pipeline Growth Platform in object code format, including any Updates provided to Licensee pursuant to this Agreement.
(b) “Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor generally makes available free of charge to all licensees of the Software.
(c) “Documentation” means onboarding documents, how-to guides, integration guides, best practices guide, and online help content for use of the Software.
(d) “Licensee Data” means all data accessed or collected by Licensor in the course of providing its services to Licensee, either related to consumers or provided by Licensee via the Software.
(e) “Program Fees” means fees for access to the Software during the Program Term. Program fees additionally means any Add-Ons for the Software that may be applicable based on usage of the Software, or Add-Ons purchased by the Customer during the Program Term. See “Add-On Pricing” in Exhibit A
(f) “Additional Program Licenses” means licenses to Add-Ons purchased during the Program Term that are not part of the Agreement at the start of the term.
(g) “Media Fees” means fees applicable for every 1000 ads served through any account-based advertising or retargeting program.
(h) “Statement of Work” or “SOW” means any Services that are contracted for by the Customer that require separate Services Fees, not included in Program Fees and Media Fees during the Program Term.
2.
License.
(a)
License Grant. Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 11(f)) license during the Term to: (i) use the Software solely for Licensee’s internal business purposes; and (ii) use and make a reasonable number of copies of the Documentation solely for Licensee’s internal business purposes in connection with Licensee’s use of the Software. Licensee may make copies of the Software solely for back-up, disaster recovery, and testing purposes; provided that any such copies of the Software: (x) remain Licensor’s exclusive property; (y) are subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original.
(b)
Use Restrictions. Licensee shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; or (iv) remove any proprietary notices from the Software or the Documentation.
(c) Licensee hereby grants Licensor a non-exclusive, non-sublicensable, revocable and non-transferable (except in compliance with Section 11(f)) license during the Term to use Licensee Data and any advertising content provided by Licensee solely to provide the Software and services to Licensee.
4.
Fees and Payment.
(a) Fees. Fees shall be paid as specified in the Agreement above or the applicable SOW.
(b)
Payment Disputes. Licensee may withhold from payment any and all payments of Fees that Licensee disputes in good faith, pending resolution of such dispute, provided that Licensee: (i) timely renders all payments and amounts that are not in dispute in accordance with the applicable payment terms of the Agreement or applicable SOW; (ii) notifies Licensor of the dispute prior to the due date for payment, specifying in such notice the amount in dispute and the reason for the dispute; (iii) works with Licensor in good faith to promptly resolve the dispute within specified timeline. Licensor shall not fail to perform any obligation hereunder by reason of Licensee’s good faith withholding of any Fees in accordance with this Section 4(b).
(c) Taxes. Licensee is responsible for all applicable sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
5.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6.
Intellectual Property Ownership.
Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation.
Pre-Existing Intellectual Property. Licensee acknowledges that in the ordinary course of Licensee’s use of the Software, and while Licensor is performing services for Licensee during the term of this Agreement, Licensor may incorporate into the Software certain inventions, original works of authorship, developments, improvements, and trade secrets that Licensor can prove with written evidence were made by Licensor prior to engagement with Licensee or licensed by Licensor from a third party. Licensor warrants that inclusion of any such inventions, original works of authorship, developments, improvements of trade secrets will not materially degrade the performance of the Software during the term of the Licensee’s use. In the event Licensor has access to any software or proprietary information owned by Licensee, Licensor does not obtain any rights to Licensee’s or any other third-party intellectual property.- Licensor in the course of providing services to Licensee plans to use the Software during the term of this agreement to provide demand generation services to Licensee. The Software belongs exclusively to the Licensor and is not assigned by the Licensor to Licensee under this or any other agreement with Licensee. If in the course of providing services to Licensee, the Licensor incorporates the Software into a services deliverable, or any other Licensor product, process or machine the Software, the Licensee is hereby granted and will have a nonexclusive, royalty-free, irrevocable, perpetual, worldwide license including the right to sublicense to make, have made, modify, use, and sell, reproduce, create derivative works of, distribute, publicly perform and publicly display the Software as part of or in connection with such services deliverable, or licensor product, process or machine. Licensor owns all rights, title, and interest in and to the Software including all Intellectual Property Rights thereto. In addition, Licensor owns and will retain all right, title and interest in and to any other software programs or tools, specifications, ideas, concepts, know-how, processes, and techniques developed solely by Licensor or its employees or sub-vendors prior to the Effective Date, including all Intellectual Property Rights related thereto (“Pre-Existing Licensor Materials”), however, excluding Licensee Data.
Licensee owns and will retain all right, title, and interest in and to: (i) Licensee product, process or machine including all Intellectual Property Rights related thereto (“Pre-Existing Licensee Materials” together with Pre-Existing Licensor Materials “Pre-Existing Materials”); (ii) Licensee Data; and (iii) all advertising content provided to Licensor by Licensee.
Improvements to Pre-Existing Materials. To the extent that enhancements, derivative works, modifications (collectively, “Improvements”) are made to Pre-Existing Materials pursuant to this Agreement, ownership of the Improvements in such Pre-Existing Materials shall be vested in the same party that owns such Pre-Existing Materials.
7.
Warranties and Warranty Disclaimer.
(a) Licensor warrants that: (i) the Software will perform materially as described in platform specifications for a period of the program term as described in the Agreement, following the Effective Date; and (ii) at the time of delivery the Software does not contain any virus or other malicious code that would cause the Software to become inoperable or incapable of being used in accordance with the Documentation;
(b) If, during the period specified in Section 7(a), any Software fails to comply with the warranty in Section 7(a), Licensor shall, upon Licensee’s reasonable request, either: (i) repair or replace the Software; or (ii) refund the Fees paid for such Software, subject to Licensee’s ceasing all use of and, if requested by Licensor, returning to Licensor all copies of the Software. The remedies set forth in this Section 7(b) are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 7(a).
(c) Licensor further represents and warrant that it shall: (i) comply with all applicable laws, rules, and regulations, including the DAA Self-Regulatory Principles, CAN-SPAM, and its GDPR addendum and CCPA addendum located on its website; (ii) comply with its obligations under the CCPA as a “service provider” thereunder; (iii) not retain, use, or disclose Licensee Data for any purpose other than for the specific purpose of performing the services specified in the Agreement and any Exhibits attached thereto, or as otherwise permitted by Licensee; and (iv) not engage in the sale of any Licensee Data. “Sale” means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, Licensee Data for monetary or other valuable consideration. Licensor understands the restrictions in this Section 7(c) and certifies that it will comply with such restrictions at all times with regard to Licensee Data.
(d) EXCEPT FOR THE WARRANTIES SET FORTH IN THE AGREEMENT, INCLUDING ANY EXHIBITS, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
8.
Indemnification.
(a)
Licensor Indemnification.
(i) Licensor shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding (”Third-Party Claim”): (A) alleging that the Software or Documentation or Licensor’s services provided to Licensee, or any use of the Software or Documentation or services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; and (B) arising from or related to Licensor’s breach of Sections 5 or 7(c), provided that Licensee promptly notifies Licensor in writing of the claim, cooperates with Licensor at Licensor’s expense, and allows Licensor sole authority to control the defense and settlement of such claim so long as such settlement does not impose any monetary or material non-monetary obligations on Licensee, and provided that Licensee will be included in any release language as part of any such settlement.
(ii) If such a claim under Section 8(a)(i)(A) above is made or appears possible, Licensee agrees to permit Licensor, at Licensor’s sole cost and expense, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If neither of these alternatives are possible notwithstanding Licensor’s commercially reasonable efforts, Licensor may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee, provided that Licensor shall refund or credit to Licensee all amounts paid by Licensee in respect of the Software or Documentation that Licensee cannot reasonably use as intended under this Agreement.
(b)
Licensee Responsibility and Indemnification
(i) Licensee is solely responsible for obtaining and represents and covenants that it has obtained or will obtain, all necessary consents, licenses, and approvals prior to any Processing by Licensor of Licensee Data provided in connection with the Services. Licensee ensures that it has a valid legal basis for such Processing. Licensor requires that Licensee collects the legal consent of individuals when utilizing pixels, cookies, or other technologies, whether installed by the Licensee or by Licensor on behalf of the Licensee, for data collection. The Licensee agrees to provide evidence of such consent to Licensor upon request and shall indemnify and hold harmless Licensor against any claims, damages, or lawsuits arising from the Licensee’s failure to obtain or provide the necessary legal consent.
Licensee may select the Licensee Data it provides to Licensor for Processing at its discretion; however, Licensor has no control over the nature, scope, origin, or means by which Licensee acquires Licensee Data. Licensor will Process Licensee Data only as necessary to provide the Services and in accordance with Licensee’s written instructions. This Agreement, along with Licensee’s use of the Services, serves as Licensee’s instructions to Licensor regarding the Processing of Licensee Data.
Furthermore, in addition to the indemnification obligations outlined above, Licensee agrees to defend, indemnify, and hold harmless Licensor and its Affiliates, including their respective directors, officers, employees, and agents, from any and all losses incurred as a result of any third-party claim, judgment, inquiry, investigation, or proceeding relating to or arising out of: (1) the content of Licensee’s campaign, or (2) any alleged infringement of third-party rights or violations of applicable laws, including, without limitation, any claims arising from Licensee’s collection and use of personal information from users of the Licensee’s websites or the development and use of behavioral targeting segments based on data collected from Licensee’s websites.
9. Limitations of Liability. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 9, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The exclusions and limitations in this Section 9 do not apply to claims pursuant to
Section 8 and
Section 5 or Section 7(c).
10.
Term and Termination.
(a) The initial term of this License Agreement begins on the Effective Date and will continue in effect for 1 year or the program term specified from such date in the applicable SOW (the “Initial
Term”).
This License Agreement will automatically renew for an additional 12 months (the "Renewal Term")
with the same Fees applicable for the renewal as for the prior Program Term unless both Parties have
agreed in writing to a renewal with different Fees applicable, or the License Agreement is (i) earlier
terminated pursuant to this Agreement’s express provisions, or (ii) either Party gives the other Party
written notice of non-renewal at least 30 days prior to the end of the current program term.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(ii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 5, Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation. In the event of such termination, all data associated with such account, including all Licensee Data and Licensee’s Confidential Information, will be deleted. Licensor will provide Licensee prior notice of such termination and backup of Licensee’s data upon written request within 60 days of notice. The data deletion policy may be implemented with respect to any or all of the program executions that have concluded and are inactive within a Licensee account, even when such an account is active (see Exhibit A). In the event Licensee terminates the Agreement pursuant to Section 10(b) Licensee will receive a pro-rata refund of any prepaid, unused Fees.
(d) Survival. This Section 10(d) and Sections 1, 5, 6, 8, 9, 10(c), and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11.
Miscellaneous.
(a)
Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
(b)
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section which may include email). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(d)
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(e) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the license granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(f)
Assignment. Neither Party may assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of the other Party, which consent will not be unreasonably withheld, conditioned, or delayed; except that a party may assign the Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under the Agreement.
(g) Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
(h)
Effect of Licensor Bankruptcy. All rights and license granted by Licensor under this Agreement are and will be deemed to be rights and license to “intellectual property,” and the subject matter of this agreement, including all Software and Documentation, is and will be deemed to be “embodiment[s]” of “intellectual property”, for purposes of and as such terms are used in and interpreted under Section 365(n) of the United States Bankruptcy Code (the “Code”) (11 U.S.C. § 365(n)). Licensee may exercise all rights and elections under the Code and all other applicable bankruptcy, insolvency and similar laws with respect to this Agreement and its subject matter.
(j)
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this License Agreement, by executing the Agreement above.
