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 thisAgreement.
2. Rights andLimitations.
(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 anyway; (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. ClientResponsibilities.
(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 ClientApplications 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 “ClientContent”). By creating a Client Application, or utilizing a ClientApplication 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 byClient. 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 endusers’ 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 th euse 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) theClient 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 theSoftware 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 theSoftware.
5. Maintenance Updates. Cloneable agrees to provide the support and maintenance services set forth in ExhibitA of this Agreement. As betweenClient 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 theSoftware. Client acknowledges that such updates may change or modify certain functions or features of theSoftware. Cloneable shall not be liable to Client for any specific changes to the features or functionality of theSoftware and Client’s exclusive recourse if it is not satisfied with any update or improvement is to stop using the Software.
6. IntellectualProperty.
(a) Cloneable retains all Intellectual Property Rights (defined below) in the Software. AnyIntellectual 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 PropertyRights” 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 allIntellectual Property Rights in the Client Content and Client Applications.Notwithstanding the foregoing or any provision to the contrary in thisAgreement, Client’s rights in the Client Applications shall not extend to ori nclude 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 Toolsd o 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 aClient end user through a Client Application (“Client Data”). Except as provided herein, Cloneable obtains no rights under the Agreement from Client orClient end users to Client Data, including any related Intellectual PropertyRights. Client consents to Cloneable’s use of Client Data and will secure sufficient rights from Client end users to enable Cloneable’s use of ClientData, 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/Limitationof 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 theClient 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 “ASIS” 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 ofLiability.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 IFTHE 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) Eachparty (the “Indemnifying party”)shall at its expense protect, defend, and hold harmless the other party and itsrespective affiliates, directors, officers, employees, agents, licensors,successors and assigns (the “Indemnifiedparty”) from and against any claim, demand, action, suit or proceedingbrought by a third party (a “Claim”),to the extent arising from or related to (i) the gross negligence or willfulmisconduct of the Indemnifying party; or (ii) violation of applicable law bythe Indemnifying party. With respect toCloneable as the Indemnifying party, Cloneable shall indemnify the Indemnifiedparty from any alleged or actual Claim that Client’s access and use of theSoftware as permitted under this Agreement infringes any United StatesIntellectual Property Right of any third party. With respect to Client as the Indemnifying party, Client shall indemnifythe Indemnified party from any alleged or actual Claim that any Client Content,Client Data, or Client Application violates the United States IntellectualProperty Right or privacy rights of any third party, or any Claim by athird-party relating to the use of a Client Application. The Indemnifying partyshall have no indemnity obligation with respect to any Claim for such portionof the Claim that arises due to the Indemnified party’s negligence, willfulmisconduct or breach of this Agreement. With respect to each Claim, theIndemnifying party shall indemnify the Indemnified party from and against anyand 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 otherauthority), that are assessed by a governmental authority or that are payableto the third party in a settlement made by the Indemnifying party.
(b) Ifany Software is, or in Cloneable’s opinion, is likely to be, determined to beinfringing of any third-party Intellectual Property Right, Cloneable shall atits expense and option either (i) procure the right for Client to continueusing it, (ii) replace it with a non-infringing equivalent, (iii) modify it tomake it non-infringing, or (iv) terminate this Agreement and refund to Clientthe fees paid for it, prorated for any use of such Software prior to the dateof termination
9. Term; Termination. This Agreementwill commence upon the date of Client’s acceptance and shall continue, unlessterminated as provided herein, for an initial period of one (1) year (the “InitialTerm”) and thereafter shall renew for additional one (1) year periods (eacha “Renewal Term”), unless either party provides prior written notice ofits intent not to renew at least thirty (30) days prior to the end of the thencurrent Term. (As used herein, theInitial Term and any Renewal Term may be referred to collectively as the “Term”).Eitherparty may terminate this Agreement, effective immediately: (i) upon mutualconsent; or (ii) in the event the other party materially breaches thisAgreement and does not cure such breach within thirty (30) days of writtennotice from the non-breaching party setting forth the nature of the materialbreach. Upon termination of thisAgreement for any reason, Client shall immediately discontinue all use of theSoftware and pay Cloneable all fees and costs due and owing, if any. Thereafter, Client shall have no furtherright, license or privilege to access, or use the Software or itscomponents. Those portions of the Agreementthat must survive in order to give effect to its essential purpose, willsurvive termination of this Agreement.
10. Confidentiality. Each party (as a “Receiving Party”hereunder) shall not disclose to any third party, any Confidential Informationof the other party (as a “DisclosingParty” hereunder) provided to such Receiving Party in anticipation of, orin connection with the performance of this Agreement. This includesConfidential Information provided to the Receiving Party prior to the effectivedate of this Agreement. As used herein, the term “Confidential Information” refers to any and all non-publicfinancial, technical, commercial, or other information concerning the business,technology, and/or affairs of the Disclosing Party, including, withoutlimitation, any cost or pricing information, customer information, contractualterms and conditions, marketing or distribution data, business methods orplans. Cloneable’s Confidential Information includes, without limitation, allpricing terms offered to Client under this Agreement. Receiving Party shall not disclose orpublicize the Confidential Information without the Disclosing Party’s priorwritten consent. Receiving Party shall protect the Confidential Informationwith the same degree of care it uses to protect its own information of asimilar nature, but in no event less than reasonable care. The Receiving Partyshall not use the Confidential Information for its own benefit or for thebenefit of any other person, third party, firm or corporation except asrequired in connection with its performance under this Agreement. The restrictions on disclosure shall notapply to information which was: (i) generally available to the public at thetime of disclosure, or later available to the public other than through faultof Receiving Party; (ii) already known to Receiving Party prior to disclosurepursuant to this Agreement, as evidenced by contemporaneously maintainedwritten records; or (iii) obtained at any time lawfully from a third party notbound by any obligation of confidentiality and under circumstances permittingits use or disclosure to others. Notwithstanding the foregoing, Receiving Partymay disclose Confidential Information as required by applicable law or byproper legal or governmental authority. Receiving Party will, if permitted byapplicable law, give Disclosing Party prompt notice of any such legal orgovernmental demand and reasonably cooperate with Disclosing Party in anyeffort to seek a protective order or otherwise to contest such requireddisclosure, at Disclosing Party’s expense, and shall disclose only that part ofthe Confidential Information that Receiving Party is required to disclose.Moreover, nothing herein shall be interpreted as restricting either party’s rightto use data or information in an aggregated and de-identified form so long asthe aggregated data cannot be recombined in such a way as to disclose anyConfidential 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 partyto the other shall be sufficiently given or delivered if it is sent byregistered or certified mail, postage prepaid, return receipt requested, deliveredpersonally or sent via electronic mail or facsimile and receipt of such isconfirmed by responsive communication. Unless Cloneable is otherwise notifiedin writing, Client’s address for notice purposes shall be Client’s addressprovided to Cloneable in registering to access the Software.
(b) EntireAgreement;Amendment. This Agreementsets forth the entire agreement of the parties and supersedes all prior orcontemporaneous writings, negotiations, and discussions with respect to thesubject matter hereof. Neither party has relied upon any such prior orcontemporaneous communications. ThisAgreement may not be amended or modified except through a written agreementexecuted by authorized representatives of each party
(c) IndependentContractors.The parties are independent contractors and will represent themselves in allregards. Neither party is the agent of the other and neither may bind the otherin any way.
(d) No Waiver. Neither party will be deemed to have waivedany of its rights under this Agreement by lapse of time or by any statement orrepresentation other than in an explicit written waiver. No waiver of a breachof this Agreement will constitute a waiver of any prior or subsequent breach ofthis Agreement.
(e) Force Majeure. Each party shallbe excused from its obligations under this Agreement (other than paymentobligations) and shall have no liability for any resulting loss or damage inthe event and to the extent its performance is delayed or prevented by anycircumstance beyond its reasonable control, including without limitation fire,flood, public health emergency, epidemic, pandemic, explosion, act of anygovernment, 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 obligationshereunder without Cloneable’s express written consent. Any attempted assignment in violation of thisprovision shall be void ab initio.Except to the extent forbidden in the previous sentence, this Agreement will bebinding upon and inure to the benefit of the respective successors and assignsof the parties.
(g) Choice of Law& Jurisdiction.This Agreement will be governed solely by the internal laws of the State of NorthCarolina, without reference to such State’s principles of conflicts of law. Theparties consent to the personal and exclusive jurisdiction of the federal andstate courts of Wake County, North Carolina. This Agreement shall not begoverned by the 1980 U.N. Convention on Contracts for the Sale of Goods.
(h) Severability. To the extentpermitted by applicable law, the parties hereby waive any provision of law thatwould render any clause of this Agreement invalid or otherwise unenforceable inany respect. In the event that a provision of this Agreement is held to be invalidor otherwise unenforceable, such provision will be interpreted to fulfill itsintended purpose to the maximum extent permitted by applicable law, and theremaining 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 service byemail and phone ("Support Services") Mondaythrough Friday (excluding Cloneable holidays listed below), from 9:00 a.m.until 5:00 p.m. (Eastern Time). Support Services will be limited to issuessurrounding suspected errors or failures in the Software, and general questionsregarding usage of features of the Software.
· Emailsupport: Monitored 9:00 A.M. to 5:00 P.M. ET, Monday – Friday
o Emailsreceived outside of office hours will be collected, however no action can beguaranteed until the next working day
· Cloneableholidays:
New Year’s Day
Good Friday
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Day after Thanksgiving Day
Christmas Eve
Christmas Day
New Years Eve
Client agrees to perform tasks asreasonably requested by Cloneable to aid in the resolution of any suspectedproblems. Prior to contacting Cloneable, Client will take reasonable steps toverify issues reported by end users and to confirm that issues are associatedwith the Software and not with Client’s computing or networking infrastructure.
Cloneable will have no liability for, andhas no obligation to provide support for, any errors, defects, or downtimecaused by third-party hardware, materials, or software.
2. Support Levels
Subject to Section 1, Cloneable will usecommercially reasonable efforts to respond to service-related incidents and/orrequests submitted by the Customer. These Support Services will be providedupon the following timelines:
Name
Description
Target Time to Response
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 younotify Cloneable of an issue.
Target time resolution is delivered on acommercially reasonable, best-effort basis, and may be delivered as a fix orworkaround.
3. Uptime Commitments:
Cloneable commits that the Software will be available a minimum of 99% ofthe time calculated on a monthly basis (the “Uptime Target”) excludingany downtime, unavailability, suspension or termination of the Software, or anyother Software performance issues: (i) that result from suspensions orterminations of the Software for any reason allowed in this Agreement; (ii)caused by factors wholly outside of Cloneable’s reasonable control, includingany force majeure event or failure of Internet access; (iii) that result fromClient’s or a third party’s actions or inactions (except where Cloneable failedto implement industry standard safeguards that would have prevent thethird-party actions); (iv) that result from Client equipment, software or othertechnology and/or third-party networks, equipment, software or othertechnology; or (v) that result from scheduled maintenance events (collectively,the "Service Agreement Exclusions"). Cloneable shall use commerciallyreasonable efforts to schedule maintenance events during off-peak hours.
The Uptime Target shall be calculated by dividing the total amount oftime the Software was available (i.e. operating without Critical error ordefect) by the total number of minutes in the calendar month, less any time theSoftware was not available due to a Service Agreement Exclusion.
EXHIBIT B
IMPLEMENTATIONAND TRAINING SERVICES
Subject toClient’s payment of the Fees, as set forth in the applicable Order Form,Cloneable agrees to provide Client with the following implementation andtraining services. The parties agree to use commercially reasonable efforts tocomplete the implementation process with the successful launch of the Software(the “Launch Date”) within thirty (30) days from the Order Form Effective Date.
1. Cloneable will assign a dedicatedemployee (the “Customer Success Manager”) to assist Client in understanding howthe Software works, including the use of the web application, data transfer,etc. Cloneable maychange the Customer Success Manager from time to time by providing notice to Client.
2. The parties agree to schedule a kickoffcall at a mutually agreeable time, but in no event later than five businessdays after the Order Form Effective date, to discuss, among other things, theimplementation process and to introduce the Customer Success Manager to keymembers of Client’s team.
3. Cloneable will provide documentationfor Client onboarding and best practices to review and complete for use withthe Software.