SOFTWARE SERVICES AND LICENCE AGREEMENT – KINOBI
Kinobi IP Pty Ltd ABN 45 139 833 588 (Kinobi) provides certain Services (as defined herein) and licenses certain Software(as defined herein) subject to the terms and conditions set out in this Software Services and Licence Agreement (Agreement).
By receiving the Services or using the Software, the Customer (as defined herein) agrees to be bound by the terms of this Agreement from the Effective Date (as defined herein).
The following capitalized terms have the following meanings when used in thisAgreement.
- 1.1 Customer means the entity receiving the Services or using the Software.
- 1.2 Customer Data means data inelectronic form input or collected through the Services by or from Customer, including by Users.
- 1.3 Cloud Services means those services provided to the Customer when the Customer orders“Cloud” on the Site, as described in the Documentation.
- 1.4 Documentation means, as applicable, the Cloud Services’ or Self-Hosted Services’ usage guides and policies, as updated from time to time, accessible via the Site.
- 1.5 Effective Date means the date the Customer begins receiving the Services or using the Software.
- 1.6 Services means, as applicable,the Self-Hosted Services or the Cloud Servicesthat are ordered by the Customer on the Site, and made available by Kinobi, as described in the Documentation.
- 1.7 Self-Hosted Services means those services provided to the Customer when the Customer orders “Self-Hosted” on the Site, as described in the Documentation.
- 1.8 Software means the most recent version of the open source patch management software licenced by Kinobi’s affiliate, Mondada Pty Ltd, and known as Mondada OpenSource, found at https://github.com/mondada/kinobi/blob/master/LICENSE (“Mondada Open Source Licence”)
- 1.9 Site means any website operated by Kinobi, including https://kinobi.io/ and http://docs.kinobi.io.
- 1.10 Third-Party Services means third-party(including Jamf Software, LLC and its affiliates)products, applications, services, software, networks, systems, directories, websites, databases and information which the Service link to, or which the Customer may connect to or enable in conjunction with the Services.
- 1.11 Term is defined in section 11.1 below.
- 1.12 User means any individual who uses the Services on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- SERVICES AND SOFTWARE LICENCE
- 2.1 Provision of Services. During the Term, and subject to the terms and conditions of this Agreement, Kinobi will (a) make the Services available to Customer pursuant to this Agreement and the applicable Documentation; (b) provide applicable standard customer support for the Services at no additional charge as described in the Documentation; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which Kinobi will use commercially reasonable efforts to notify Customer in advance through the Site); and (ii) for any unavailability caused by circumstances beyond Kinobi’sreasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Kinobi’semployees), Internet service provider failure or delay, Third-Party Services, or acts undertaken by third parties, including without limitation, denial of service attack.
- 2.2 Services Revisions. Kinobimay revise Services features and functions or the Documentation at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the Services materially reduces their features or functionality, Customer may within 30 days of notice of the revision terminate its subscription to the affected Services, without cause, or terminate this Agreement without cause if the affected Services are the only Services to which it has subscribed.
- 2.3 Software License. For the Self-Hosted Services only, Customer’s use of the Software is subject to the MondadaOpen Source Licence.
Customer shall pay the fees set out on the Site for the Term of the Services it orders (Subscription Fee).Payment of the Subscription Fee will be via, and subject to the terms and conditions of, a third-party payment gateway accessed from the Site. All payments are in advance and are quoted and payable in United States Dollars. There will be no Subscription Fees for the first 30 days of the Term. Kinobi will not be required to refund the Subscription Fee under any circumstances.
- CUSTOMER DATA
- 4.1 Use of Customer Data. Unless it receives Customer’s prior written consent, Kinobi: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Services; and (b) shall not intentionally grant any third-party access to Customer Data, including without limitation Kinobi’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Kinobi may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Kinobi shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
- 4.2 Data Deletion. Kinobi may permanently erase Customer Data if Customer’s account is delinquent,suspended, or terminated for 30 days or more.
- CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS
- 5.1 Restrictions. Customer shall not: (a) use the Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Services; (b) provide Services passwords or other log-in information to any third-party; (c) share non-public Services features or content with any third-party; (d) access the Services in orderto build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Services, or to copy any ideas,features, functions or graphics of the Services; or (e) engage in web scraping or data scraping on or related to the Services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. If it suspects any breach of the requirements of this section 5.1, including without limitation by Users, Kinobi may suspend Customer’s access to the Services without advance notice, in addition to such other remedies as Kinobi may have.
- 5.2 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Services, including without limitation by protecting its passwords and other log-in information. Customer shall notify Kinobi immediately ofany known or suspected unauthorized use of the Services or breach of its securityand shall use best efforts to stop said breach.
- 5.3 Compliance with Laws. In its use of the Services, Customer shallcomply with all applicable laws.
- 5.4 Users &Services Access. Customer is responsible and liable for: (a) Users’ use of the Services, including without limitation unauthorized User conduct and any User conduct that would breach the Customer’s obligations under this Agreement; and (b) any use of the Services through Customer’s account, whether authorized or unauthorized.
- IP & FEEDBACK
- 6.1 IP Rights to the Services. Except for the Software, Kinobi retains all right, title, and interest in and to the Services, including without limitation all software used to provide the Services and all graphics, user interfaces, logos, and trademarks reproduced through the Services. This Agreement does not grant Customer any intellectual property license or rights in or to the Services or any of its components. Customer recognizes that the Services and its components are protected by copyright and other laws.
- 6.2 Feedback. Kinobi has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Kinobi, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Kinobi’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of section7 below, Feedback will not be considered Confidential Information, provided information Customer transmits with Feedback or related to Feedback may be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Kinobi’s products or services.)
- CONFIDENTIAL INFORMATION
Confidential Information refers to the following items Kinobi discloses to Customer: (a) any document Kinobi marks “Confidential”; (b) the Documentation, whether or not marked or designated confidential; and (c) any other nonpublic, sensitive information, including information Kinobi discloses orally, that Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. Customer is on notice that the Confidential Information may include Kinobi’s valuable trade secrets.
- 7.1 Nondisclosure. Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Kinobi of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Kinobi prompt notice of any such legal or governmental demand and reasonably cooperate with Kinobi in any effort to seek a protective order or otherwise to contest such required disclosure, at Kinobi’s expense.
- 7.2 Termination & Return. With respect to each item of Confidential Information, the obligations of section 7.1 above (Nondisclosure) will terminate 5 years after the date of disclosure; provided that such obligations related to Confidential Information constituting Kinobi’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Kinobi or certify, in writing, the destruction thereof.
- 7.3 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Kinobi will retain all right, title, and interest in and to all Confidential Information.
- REPRESENTATIONS & WARRANTIES
- 8.1 From Kinobi. Kinobi represents and warrants that it is the owner of the Services and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third-party. In the event of a breach of the warranty in this section 8.1, Kinobi, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the Services; (b) replace or modify the Services to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination.In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Kinobi’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this section 8.1and for potential or actual intellectual property infringement by the Services.
- 8.2 From Customer. Customer represents and warrants that: (a) it has validly entered into this Agreement and has the legal power to do so; (b) it has accurately identified itself andit has not provided any inaccurate information about itself to or through the Services; and (c) it is a corporationor entity authorized to do business pursuanttoapplicablelaw.
- 8.3 Warranty Disclaimers. Except to the extent set forth in section 8.1 above, CUSTOMER ACCEPTS THE SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) KINOBI HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; (b) KINOBI DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c)KINOBI DOES NOT REPRESENT OR WARRANTTHAT THE SERVICESARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
Customer shall defend, indemnify, and hold harmless Kinobi and the Kinobi Associates (as defined below) against any third-party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the Services, the Software or Third-party Services. (The “Kinobi Associates” are Kinobi’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
- LIMITATION OF LIABILITY
- 10.1 Cap. KINOBI’SCUMULATIVE LIABILTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMERACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.1 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF KINOBI WAS TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. KINOBI HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES.
- 10.2 Exclusion of Consequential Damages. IN NO EVENT WILL KINOBI OR ITS AFFILIATES BE LIABLE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
- 10.3 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF KINOBI IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION10, KINOBI’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE. FOR THE AVOIDANCE OF DOUBT, KINOBI’S LIABILITY LIMITS AND OTHER RIGHTS SET FORTH IN THIS SECTION10 APPLY LIKEWISE TO KINOBI’SAFFILIATES, SUPPLIERS, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AND OTHER REPRESENTATIVES.
- TERM & TERMINATION
- 11.1 Term. The term of this Agreement (Term)willcommence on the Effective Date and continue for the period (either one month or one year) chosen by the Customer when it orders any of the Services via the third-party e-commerce plugin accessed through the Site. The Term will auto-renew for successive periods equal in the length to the first period (that is, either one month or one year) unless the Customer cancels such auto-renewal through the e-commerce plugin at least 10 days prior to the expiry of the then-current Term.
- 11.2 Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
- 11.3 Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Services and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
- 12.1 Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
- 12.2 Notices. Kinobi may send notices pursuantto this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 48hours after they are sent. Customer may send notices pursuant to this Agreement to the contact email shown on the Site, and such notices will be deemed received 48 hours after they are sent.
- 12.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
- 12.4 Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Kinobi’s express written consent. Except to the extent forbidden in this section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
- 12.5 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. If 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.
- 12.6 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 by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
- 12.7 Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the laws of the State of Victoria, Australia. The parties consent to the exclusive jurisdiction of the courts of the State of Victoria, Australia for the purpose of resolving any dispute relating to this Agreement.
- 12.8 Conflicts. In the event of any conflict between this Agreement and any Kinobi policy posted online, the terms of this Agreement will govern.
- 12.9 Technology Export. Customer shall not: (a) permit any third-party to access or use the Services in violation of any U.S. law or regulation; or (b) export any software provided by Kinobi or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third-party to access or use the Services in, or export such software to, a country subject to a United States embargo.
- 12.10 Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
- 12.11 Amendment. Kinobi may amend this Agreement from time to time by posting an amended version at the Site. Customer’s continued use of the Service following any such an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party. Kinobi may similarly revise any Kinobi policy posted online at any time by posting a new version at the Site, and Customer’s continued use of the Service following any such an amendment will confirm Customer’s consent thereto.