THIS END-USERLICENSE AGREEMENT (THE “AGREEMENT”)IS A LEGAL AGREEMENT BETWEEN YOU (THE ENTITY AGREEING TO THE TERMS OF THIS AGREEMENT) (HEREAFTER REFERRED TO AS “CLIENT”)AND CLONEABLE, INC., A DELAWARE CORPORATION (HEREAFTER REFERRED TO AS “CLONEABLE”) FOR THE USE OF THE CLONEABLE SOFTWARE (THE “SOFTWARE”)BEING MADE AVAILABLE BY CLONEABLE TO CLIENT CONCURRENTLY WITH CLIENT’S ACKNOWLEDGEMENT OF THIS AGREEMENT.
1. Grant of License.
Cloneable hereby grants to Client a limited, non-sublicensable (except as expressly set forth herein), non-transferable (except as set forth in Section 11(f)), non-exclusive right and license during the Term to (i) access and use the Software to integrate the Software into one or more Client Applications (as defined below); (ii) sublicense to Client end users the right to use the Software solely as integrated into a Client Application. Except for authorized Client end users, Client shall not use the Software for, or on behalf of, third parties that are not authorized under this Agreement.
2. Rights and Limitations.
(a) Except as expressly provided in this Agreement, Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software in any way; (ii) modify or make derivative works based upon the Software; (iii) reverse engineer the Software; or (iv) access the Software in order to build a competitive product or service.
(b) Each party agrees that it shall not, and shall not permit its employees, contractors or Client end user to use the Software to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Software or the data contained therein; or (v) attempt to gain unauthorized access to the Software or its related systems or networks.
(c) Client is responsible for all activity occurring under Client’s user accounts and shall comply with all applicable United States laws and regulations in connection with Client’s use of the Software, including but not limited to privacy laws and export control laws and regulations. Client shall: (i) notify Cloneable immediately upon becoming aware of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Software; (ii) report to Cloneable immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of the Software that becomes known or suspected by Client or Client’s users; and (iii) not impersonate another user or provide false identity information to gain access to or use the Software.
3. Client Responsibilities.
(a) Subject to the terms of this Agreement, Client may, during the Term (as defined below), use the Software to create customized applications based on the components existing in the Software (each, a “Client Application”). Client may incorporate into such Client Applications Client specific components, or Client end user specific components, such as Client or Client end user business processes, methods, AI models, trademarks, logos, branding and content (collectively “Client Content”). By creating a Client Application, or utilizing a Client Application through the Software, and incorporating any Client Content into such Client Application, Client hereby grants Cloneable a royalty-free, nonexclusive, worldwide, transferable license to modify, copy, sell, display, distribute and create derivative works of the Client Content solely in connection with, and as necessary for, the delivery and use of the Software by Client. Client hereby represents and warrants that it will secure sufficient rights to any Client Content provided by a Client end user to provide the license granted herein.
(b) Client acknowledges that it is fully responsible for the Client Content, Client’s use of the Client Applications, and as between Client and Cloneable, any Client end users’ use of the Client Applications. Without limiting the generality of the foregoing, Client represents and warrants that: (i) it has the lawful right to reproduce and distribute the Client Content; (ii) the Client Content and the use of the Client Applications do not, and will not, violate any copyright, trademark, trade secret, or other intellectual property rights of any third party; (iii) the Client Content and the use of the Client Applications comply with all applicable federal, state, and local laws and regulations; (iv) the Client Content and the use of the Client Applications do not invade any individual’s rights of privacy or publicity; and (v) the Client Content and the use of the Client Applications are not harmful, threatening, abusive, vulgar, harassing, defamatory, obscene, pornographic, indecent, inflammatory, libelous, tortious, hateful, or racially, ethnically, or otherwise objectional.
(c) In the event Cloneable reasonably concludes that any Client Content or the use of the Client Application violates the terms of this Agreement, in addition to any other rights or remedies it may have, Cloneable may elect to suspend Client’s right to use the Software until such violation is remedied. Cloneable will reasonably endeavor to provide prior written notice to Client before such action, but in any event will promptly notify Client after the right to use the Software has been suspended.
(d) There may be storage limits associated with Client’s use of the Software, which limits shall be described when Client orders the Software and/or communicated to Client through the Software. If Client exceeds such storage limits, Cloneable reserves the right to charge for additional storage or overage fees at Cloneable’s then-current storage and overage rates.
(e) Client acknowledges that Cloneable is not providing Client with any Software development services unless the parties mutually agree to a separate agreement agreeing to such custom development and specifying the scope of the Services, the timing of delivery and the ownership of any deliverables.
4. Payments.
Client agrees to pay Cloneable those fees, if any, identified by Cloneable concurrently when receiving the Software. All fees paid due under this Agreement are non-cancelable and the sums paid are nonrefundable. Client agrees to pay any sales, value-added or other similar taxes imposed by applicable law for the right to access the Software.
5. Maintenance; Updates.
Cloneable agrees to provide the support and maintenance services specified in the applicable Order Form. As between Client and Cloneable, Client is responsible for providing first level support to Client end users for any Client Application. Cloneable may from time-to-time, and in its exclusive discretion, update the Software in order to, among other things, correct errors or bugs, improve the performance of the Software Product or increase the functionality of the Software. Client acknowledges that such updates may change or modify certain functions or features of the Software. Cloneable shall not be liable to Client for any specific changes to the features or functionality of the Software and Client’s exclusive recourse if it is not satisfied with any update or improvement is to stop using the Software.
6. Intellectual Property.
(a) Cloneable retains all Intellectual Property Rights (defined below) in the Software. Any Intellectual Property Rights developed by Cloneable in the course of its performance under this Agreement shall belong exclusively to Cloneable. Moreover, the Intellectual Property Rights in, and to, any modifications, derivatives and improvements to the Software made by Cloneable and/or Client shall, and do hereby vest, exclusively in Cloneable. “Intellectual Property Rights” means all intangible, proprietary rights, including, without limitation, copyrights, trade secrets, trademarks, patents, design rights, goodwill, look and feel, and moral rights.
(b) Except as otherwise expressly set forth in this Agreement, Client retains all Intellectual Property Rights in the Client Content and Client Applications. Notwithstanding the foregoing or any provision to the contrary in this Agreement, Client’s rights in the Client Applications shall not extend to or include any ideas, templates, architectures, sequencing of components, or processes that may be used in connection with no-code development generally, or that were already capable of being performed by Cloneable’s Software prior to the Effective Date, including all Intellectual Property Rights associated with any of the foregoing (collectively, the “Development Tools”). For the avoidance of doubt, Development Tools do not include or extend to the use of any Client Content or Client Confidential Information. Development Tools shall be and remain the exclusive property of Cloneable. Client shall have no interest in or claim to the Development Tools, except as necessary to exercise its rights in the Services.
(c) As between Cloneable and Client, Client owns all right, title, and interest in and to any and all electronic data or information submitted by or for Client or a Client end user through a Client Application (“Client Data”). Except as provided herein, Cloneable obtains no rights under the Agreement from Client or Client end users to Client Data, including any related Intellectual Property Rights. Client consents to Cloneable’s use of Client Data and will secure sufficient rights from Client end users to enable Cloneable’s use of Client Data, to provide the Software to Client. Cloneable may disclose Client Data to provide the Software to Client or to comply with any request of a governmental or regulatory body (including subpoenas or court orders). Cloneable shall also have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software, and Cloneable will be free to use such information to improve and enhance the Software and for diagnostic and corrective purposes in connection with the Software.
7. Warranty/Limitation of Liability.
(a) Disclaimer. The Software licensed to Client shall, during the Term, materially conform to the documentation relating to the Software, if any, provided by Cloneable to Client; provided that in the event the Software does not conform to the specified documentation, specifications, or requirements, Client’s remedy shall be to have Cloneable repair, modify or replace the Software per the terms of its support and maintenance obligations. Client represents and warrants that no Client Application, Client Content or Client Data will contain software or content distributed under any licensing model that purports to (i) require the distribution of or access to content or source code of any Client Application or any software into which the Client Content or Client Data is incorporated, or (ii) restrict the ability to charge for commercial use or distribution of the content, Client Application or any software into which the Client Content or Client Data is incorporated. Client agrees not to combine the Software, including as a part of any Client Application, with any open-source software that would require the distribution of or access to the source code of the Client Application or Software, or restrict Cloneable’s ability to distribute or charge for the Software in any way. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED ABOVE THE SOFTWARE IS OFFERED TO CLIENT “AS IS” AND WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED.
(b) Limitation of Liability. WITHOUT LIMITING THE RIGHTS OF THE PARTIES FOR EQUITABLE RELIEF AND EXCEPT FOR INDEMNIFICATION OBLIGATIONS OF THE PARTIES AND/OR BREACH OF THE CONFIDENTIALITY PROVISIONS IN THIS AGREEMENT, IN NO EVENT: (a) WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES ACTUALLY PAID TO CLONEABLE BY CLIENT AND/OR PROPERLY DUE FROM CLIENT PURSUANT TO THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM; AND (b) WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE AND EVEN IF THE PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF A PARTY’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
8. Indemnification.
(a) Each party (the “Indemnifying party”) shall at its expense protect, defend, and hold harmless the other party and its respective affiliates, directors, officers, employees, agents, licensors, successors and assigns (the “Indemnified party”) from and against any claim, demand, action, suit or proceeding brought by a third party (a “Claim”), to the extent arising from or related to (i) the gross negligence or willful misconduct of the Indemnifying party; or (ii) violation of applicable law by the Indemnifying party. With respect to Cloneable as the Indemnifying party, Cloneable shall indemnify the Indemnified party from any alleged or actual Claim that Client’s access and use of the Software as permitted under this Agreement infringes any United States Intellectual Property Right of any third party. With respect to Client as the Indemnifying party, Client shall indemnify the Indemnified party from any alleged or actual Claim that any Client Content, Client Data, or Client Application violates the United States Intellectual Property Right or privacy rights of any third party, or any Claim by a third-party relating to the use of a Client Application. The Indemnifying party shall have no indemnity obligation with respect to any Claim for such portion of the Claim that arises due to the Indemnified party’s negligence, willful misconduct or breach of this Agreement. With respect to each Claim, the Indemnifying party shall indemnify the Indemnified party from and against any and all damages, judgments, awards, fines, penalties, expenses, and costs (including without limitation attorney’s fees and expenses that are awarded to the third party by a court or other authority), that are assessed by a governmental authority or that are payable to the third party in a settlement made by the Indemnifying party.
(b) If any Software is, or in Cloneable’s opinion, is likely to be, determined to be infringing of any third-party Intellectual Property Right, Cloneable shall at its expense and option either (i) procure the right for Client to continue using it, (ii) replace it with a non-infringing equivalent, (iii) modify it to make it non-infringing, or (iv) terminate this Agreement and refund to Client the fees paid for it, prorated for any use of such Software prior to the date of termination
9. Term; Termination.
This Agreement will commence upon the date of Client’s acceptance and shall continue, unless terminated as provided herein, for an initial period of one (1) year (the “Initial Term”) and thereafter shall renew for additional one (1) year periods (each a “Renewal Term”), unless either party provides prior written notice of its intent not to renew at least thirty (30) days prior to the end of the then current Term. (As used herein, the Initial Term and any Renewal Term may be referred to collectively as the “Term”).Either party may terminate this Agreement, effective immediately: (i) upon mutual consent; or (ii) in the event the other party materially breaches this Agreement and does not cure such breach within thirty (30) days of written notice from the non-breaching party setting forth the nature of the material breach. Upon termination of this Agreement for any reason, Client shall immediately discontinue all use of the Software and pay Cloneable all fees and costs due and owing, if any. Thereafter, Client shall have no further right, license or privilege to access, or use the Software or its components. Those portions of the Agreement that must survive in order to give effect to its essential purpose, will survive termination of this Agreement.
10. Confidentiality.
Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a “Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement. This includes Confidential Information provided to the Receiving Party prior to the effective date of this Agreement. As used herein, the term “Confidential Information” refers to any and all non-public financial, technical, commercial, or other information concerning the business, technology, and/or affairs of the Disclosing Party, including, without limitation, any cost or pricing information, customer information, contractual terms and conditions, marketing or distribution data, business methods or plans. Cloneable’s Confidential Information includes, without limitation, all pricing terms offered to Client under this Agreement. Receiving Party shall not disclose or publicize the Confidential Information without the Disclosing Party’s prior written consent. Receiving Party shall protect the Confidential Information with the same degree of care it uses to protect its own information of a similar nature, but in no event less than reasonable care. The Receiving Party shall not use the Confidential Information for its own benefit or for the benefit of any other person, third party, firm or corporation except as required in connection with its performance under this Agreement. The restrictions on disclosure shall not apply to information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through fault of Receiving Party; (ii) already known to Receiving Party prior to disclosure pursuant to this Agreement, as evidenced by contemporaneously maintained written records; or (iii) obtained at any time lawfully from a third party not bound by any obligation of confidentiality and under circumstances permitting its use or disclosure to others. Notwithstanding the foregoing, Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Receiving Party will, if permitted by applicable law, give Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at Disclosing Party’s expense, and shall disclose only that part of the Confidential Information that Receiving Party is required to disclose. Moreover, nothing herein shall be interpreted as restricting either party’s right to use data or information in an aggregated and de-identified form so long as the aggregated data cannot be recombined in such a way as to disclose any Confidential Information or the Disclosing Party’s identity.
11. Miscellaneous.
(a) Notices. Notice, demand, or other communication mandated to be given by this Agreement by either party to the other shall be sufficiently given or delivered if it is sent by registered or certified mail, postage prepaid, return receipt requested, delivered personally or sent via electronic mail or facsimile and receipt of such is confirmed by responsive communication. Unless Cloneable is otherwise notified in writing, Client’s address for notice purposes shall be Client’s address provided to Cloneable in registering to access the Software.
(b) Entire Agreement;Amendment. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications. This Agreement may not be amended or modified except through a written agreement executed by authorized representatives of each party
(c) Independent Contractors. The parties are independent contractors and will represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.
(d) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
(e) Force Majeure. Each party shall be excused from its obligations under this Agreement (other than payment obligations) and shall have no liability for any resulting loss or damage in the event and to the extent its performance is delayed or prevented by any circumstance beyond its reasonable control, including without limitation fire, flood, public health emergency, epidemic, pandemic, explosion, act of any government, act of God or of the public enemy, strike or other labor dispute, and any civil disturbance (each a “Force Majeure Event”). If a Force Majeure Event lasts longer than sixty (60) consecutive days, either party may terminate this Agreement without penalty, and with no further obligation to the other party.
(f) Assignment & Successors. Client may not assign this Agreement or any of its rights or obligations hereunder without Cloneable’s express written consent. Any attempted assignment in violation of this provision shall be void ab initio. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
(g) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of North Carolina, without reference to such State’s principles of conflicts of law. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Wake County, North Carolina. This Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the Sale of Goods.
(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
EXHIBIT A
SUPPORT AND MAINTENANCE SERVICES
1. Technical Support. Cloneable will provide customer support services ("Support Services") as specified in the applicable Order Form or pricing band selected by Client. Support Services will be limited to issues surrounding suspected errors or failures in the Software, and general questions regarding usage of features of the Software.
Support Services will be provided during the hours specified in the applicable Order Form, excluding the following Cloneable holidays:
• New Year's Day
• Good Friday
• Memorial Day
• Independence Day
• Labor Day
• Thanksgiving Day
• Day after Thanksgiving Day
• Christmas Eve
• Christmas Day
• New Year's Eve
Client agrees to perform tasks as reasonably requested by Cloneable to aid in the resolution of any suspected problems. Prior to contacting Cloneable, Client will take reasonable steps to verify issues reported by end users and to confirm that issues are associated with the Software and not with Client's computing or networking infrastructure.
Cloneable will have no liability for, and has no obligation to provide support for, any errors, defects, or downtime caused by third-party hardware, materials, or software.
2. Support Levels
Subject to Section 1, Cloneable will use commercially reasonable efforts to respond to service-related incidents and/or requests submitted by the Customer. The following represents baseline response times, which may be improved based on the support tier selected in the applicable Order Form:
Critical: Defined as an error or defect in the Software that affects delivery of the Software, timely achievement of key milestones, or that may pose a significant reputational risk to Client. Cloneable will respond to Client 0-8 hours of issue identification during normal business hours to address:
○ Issue details
○ Proposed resolution
○ Expected time for resolution
Non-Critical: Defined as an error or defect in the Software that does not pose a significant reputational risk to Client. Cloneable will respond to Client within 48 hours of issue identification during normal business hours to address:
○ Issue details
○ Proposed resolution
○ Estimated duration or number of users affected
Future Request A cosmetic issue or a future feature enhancement request. Logged and evaluated for roadmap based on market feedback, feasibility, and other criteria.
Target time to response begins when you notify Cloneable of an issue.
Target time resolution is delivered on a commercially reasonable, best-effort basis, and may be delivered as a fix or workaround.
3. Uptime Commitments:
Uptime commitments, if any, shall be as specified in the applicable Order Form based on the support tier selected by Client. Where uptime commitments apply, Cloneable commits that the Software will be available a minimum of 99% of the time calculated on a monthly basis (the "Uptime Target") excluding any downtime, unavailability, suspension or termination of the Software, or any other Software performance issues: (i) that result from suspensions or terminations of the Software for any reason allowed in this Agreement; (ii) caused by factors wholly outside of Cloneable's reasonable control, including any force majeure event or failure of Internet access; (iii) that result from Client's or a third party's actions or inactions (except where Cloneable failed to implement industry standard safeguards that would have prevent the third-party actions); (iv) that result from Client equipment, software or other technology and/or third-party networks, equipment, software or other technology; or (v) that result from scheduled maintenance events (collectively, the "Service Agreement Exclusions"). Cloneable shall use commercially reasonable efforts to schedule maintenance events during off-peak hours.
Where uptime commitments apply, the Uptime Target shall be calculated by dividing the total amount of time the Software was available (i.e. operating without Critical error or defect) by the total number of minutes in the calendar month, less any time the Software was not available due to a Service Agreement Exclusion