Enterprise Terms and Conditions
These Enterprise Terms and Conditions (the “Terms”) are a binding contract between you or the entity you represent (“Customer”) and Keebo, Inc. (“Keebo” or “Company”). You represent and warrant that you are authorized to bind Customer. This “Agreement” includes and incorporates these Terms and any order forms executed by the parties in writing and referencing these Terms (each, an “Order Form”). By accepting this Agreement (e.g., by clicking a box indicating acceptance, by executing an Order Form, or by using the “Services” (as defined in each Order Form)), Customer agrees to the terms and conditions of this Agreement, to the exclusion of all other terms. Capitalized terms used herein that are not separately defined will have the meanings ascribed to them in the Order Form.
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, Keebo will provide Customer with use of the Software in the Hosting Environment (as defined below) for the Subscription Term (the “Subscription Service”). The Subscription Service is subject to modification from time to time at Keebo’s sole discretion, for any purpose deemed appropriate by Keebo. Keebo will use reasonable efforts to give Customer prior written notice of any significant modification.
1.2 Keebo will make the Subscription Service available in accordance with Keebo’s then-current Service Level Agreement for such Subscription Service, if any. .
1.3 Subject to the terms hereof, Keebo will provide reasonable support to Customer for the Subscription Service from Monday through Friday during Keebo’s normal business hours.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Except as otherwise specified, Customer will be responsible for providing the information technology infrastructure, including servers, software, hardware, electronic systems and networks, whether operated directly by Customer or through the use of third-party services, required to install and run the Software (the “Hosting Environment”) and for ensuring that the Hosting Environment meets the requirements for installation and operation of the Software as provided by Keebo to Customer from time to time. Keebo shall have no responsibility for the Hosting Environment or any failure by Customer to provide the Hosting Environment in accordance with such requirements. The Hosting Environment will be dedicated exclusively to the Subscription Service. Customer will not otherwise use or transfer any portion of the Hosting Environment until all Software has been permanently removed from the Hosting Environment. Customer will maintain the Hosting Environment in good working order (including but not limited to backup, recovery, and reboot services as necessary). Customer will have full responsibility for security of the Hosting Environment (physical, electronic and otherwise) such that (except for use of the Software by Customer for the Subscription Service as expressly and unambiguously authorized in Sections 1 and 2 of this Agreement) no person or entity other than Keebo will have any direct or indirect access to any Software. Customer acknowledges and agrees that Keebo will at all times have access to the Hosting Environment (including but not limited to onsite access and electronic access) to engage in any activity or action relating to Services (including but not limited to maintenance and installation of the Software) subject to Customer’s standard reasonable security procedures. Keebo will have no obligation to insure or be responsible for any loss or damage to property of any kind owned or leased by Customer or its employees, contractors, and agents. Upon any termination, Customer will permit Keebo to access the Hosting Environment to remove all Keebo property, including but not limited to Software. Customer will not allow any lien to attach to any Software, and will not remove any notice Keebo may apply indicating that the Software is not owned by Customer.
2.2 Customer will not, and will not permit any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Software or any other software, tools or technology used by Keebo to provide the Services (“Keebo Technology”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on the Keebo Technology; (iii) use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own internal use for its own internal benefit; (iv) use the Software or Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; or (v) use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws, regulations and rights (including but not limited to those related to privacy , intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation).
2.3 Customer will cooperate with Keebo in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Keebo may reasonably request, to enable Keebo to provide the Services and perform its obligations hereunder. Customer will also cooperate with Keebo in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.4 Customer will designate an employee who will be responsible for all matters relating to this Agreement (“Primary Contact”). Customer may change the individual designated as Primary Contact at any time by providing written notice to Keebo.
2.5 Customer hereby agrees to indemnify and hold harmless Keebo against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees, collectively “Losses”) in connection with any claim or action that arises from an alleged violation of Section 2.2or otherwise from Customer’s use of the Services or that arises from the Hosting Environment or Third Party Services. Notwithstanding the foregoing, Customer shall not be required to indemnify Keebo against any Losses to the extent such Losses arise as a direct result of Keebo’s breach of this Agreement or Keebo’s negligence or willful misconduct.
2.6 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2.7 Customer acknowledges and agrees that the Services operates on or with or using application programming interfaces (APIs) and/or other software or services operated or provided by third parties (“Third Party Services”). Keebo is not responsible for any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for access and use of Third Party Services in connection with its use of the Software and for complying with any applicable terms or conditions thereof. Keebo does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
3.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it [without restriction] prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it [without restriction] by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Keebo may aggregate data and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.
3.3 Customer acknowledges that Keebo does not wish to receive any Proprietary Information from Customer that is not necessary for Keebo to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Keebo may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
3.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
4. INTELLECTUAL PROPERTY RIGHTS
Keebo alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services, the Software or any other Keebo Technology or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services, the Software and/or any other Keebo Technology, which are hereby assigned to Keebo. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Software or any other Keebo Technology, or any intellectual property rights.
Keebo owns all right, title, and interest in all inventions, developments, works of authorship, creations and discoveries conceived, reduced to practice or made by Keebo or its employees, contractors or other representatives in performing the Services, including without limitation any custom applications, reports, configurations, interfaces, integrations, features, functionality, enhancements, modifications, add-ons and similar software improvements or additions to the Software developed by Keebo or its employees, contractors or other representatives for Customer pursuant to Professional Services (“Customizations”). Customer acknowledges that it neither own nor acquire any additional rights in and to the foregoing not expressly granted by this Agreement. Any Customizations developed by Keebo for Customer pursuant to Professional Services shall be considered part of the Software and Customer’s right to access and use the Software and the other terms and conditions hereof that apply to the Software shall apply to such Customizations.
Subject to the terms and conditions of this Agreement, Customer hereby grants to Keebo a royalty-free, non-exclusive license to use its trademarks, service marks, trade names and/or logos solely for the purposes of the Marketing Activities and for such other marketing and promotional uses as Customer approves in advance in writing (email acceptable), which approval shall not be unreasonably withheld, delayed, or conditioned.
The Software may process certain content/data stored in Customer’s database systems or otherwise provided by or on behalf of Customer (“Content”). As between Customer and Keebo, Customer shall have sole responsibility with respect to Content. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, sole ownership of) all Content processed through the Services and the intellectual property rights with respect to that Content. If Keebo receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party, Keebo may (but is not required to) suspend activity hereunder with respect to that Content and Customer will indemnify Keebo from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such notice or claim, as incurred.
Keebo shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Software of any United States patent or any copyright or misappropriation of any trade secret, provided Keebo is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Keebo will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Keebo, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Keebo, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Keebo from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Keebo’s indemnity obligation by the preceding sentence.
5. PAYMENT OF FEES
5.1 Customer will pay Keebo the applicable fees as set forth on the Order Form (the “Fees”). All Fees will be invoiced and paid in accordance with the Payment Schedule and the Method of Payment. If not otherwise specified, payments will be due within thirty (30) days of invoice and are nonrefundable.
5.2 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Keebo’s net income) unless Customer has provided Keebo with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Keebo on account thereof.
6.1 Subject to earlier termination as provided below, this Service Agreement is for the Subscription Term as specified in the Order Form.
6.2 In the event of any material breach of this Agreement (including any failure to pay), the non-breaching party may terminate this Agreement prior to the end of the Subscription Term by giving thirty (30) days (or ten (10) days in the case of nonpayment) prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.3 All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
Keebo represents and warrants that it will not knowingly include, in any Keebo software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If, at any time, Keebo fails to comply with the warranty in this Section, Customer may promptly notify Keebo in writing of any such noncompliance. Keebo will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
8. WARRANTY DISCLAIMER
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SERVICES AND KEEBO PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. KEEBO (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL KEEBO (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF KEEBO HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF KEEBO, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO KEEBO HEREUNDER IN THE SIX MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATIONS WILL NOT APPLY TO LIABILITY TO THE EXTENT SUCH LIABILITY CANNOT BE LIMITED UNDER APPLICABLE LAW.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any Software or other Keebo Technology or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Keebo are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Keebo’s prior written consent. Keebo may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Keebo in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Keebo will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of Michigan, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in Washtenaw County, Michigan, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either party may seek injunctive relief in any court of competent jurisdiction. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Keebo. Keebo is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion.