This Master Software License and Services Agreement (“Agreement“) is entered into as of the date of last signature below (the “Effective Date”) between Komprise, Inc., a Delaware corporation with its address at 1901 S. Bascom Ave., Suite 500, Campbell, CA 95008 (“Komprise”) and the organization agreeing to these terms, hereinafter referred to as (“Customer”).

 

Scope

This Agreement sets forth the specific terms under which Komprise will license the Komprise software (“Software”) and provide maintenance or professional services pursuant to a Quote. “Quote” shall mean the Komprise or Komprise’s authorized reseller’s order form/quote, executed by Customer, pursuant to which Customer orders Software and services from Komprise.

  1. License
  2. License Rights Granted.
  3. Commencing as of the Effective Date and subject to all the terms of this Agreement, Komprise grants Customer a non-sub-licensable, non-exclusive, non-transferable right and license to use the Software only for Customer’s internal business purposes and in accordance with any applicable use/capacity levels and for the term set forth on the applicable Quote. Customer may make a copy of the Software and any user guides or other Software documentation (“Documentation”) solely for backup or archival purposes provided that Customer may not use such copy for any other purpose and provided such copy is kept in Customer’s possession and control. Komprise retains ownership of all Software and modifications and copies thereof.
  4. The Software may contain open source software. The open source software is licensed under the terms of the applicable third party open source license conditions and/or copyright notices that can be found in the “About” section in the Software’s online help pages.  Copyrights to the open source software are held by copyright holders indicated.
  5. Restrictions of Use. The Software provided to Customer is confidential and copyrighted. Customer must retain the copyright and other proprietary notices on the Software or any copies. All rights, title and interest in and to the Software not expressly granted to Customer are reserved to Komprise. Except for open source software, any third party software supplied by Komprise may only be used with and for the support of the Software and are subject to the licenses accompanying such third party software. Customer may not offer the benefits and services of the Software to third parties, whether such arrangement is in the nature of a service bureau, an outsourcing service, or another similar service or business. Customer shall not (i) copy or use the Software or Documentation except as specified in this Agreement; (ii) cause or permit the reverse engineering or attempt to discover any source code or underlying ideas or algorithms of Software; (iii) externally disclose any evaluation results to unaffiliated third parties; (iv) use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any applicable laws and regulations, including without limitation the United States Export Administration Act and the rules and regulations thereunder, or (v) install, modify or create derivative works of the Software without the express written consent of Komprise.
  6. Software Usage Audit. Customer agrees and acknowledges that the Software may access and collect non-personally identifiable information about Customer’s (i) hardware configuration and ID, (ii) operating system and driver configuration, (iii) applications settings, performance, and usage metrics, and (iv) usage metrics of the Software in order to confirm compliance with the terms of the Agreement and the applicable Quote. Customer shall promptly reconcile any over-usage with Komprise. Customer agrees not to disable the audit feature of the Software.
  7. Software Warranty. Komprise warrants that for thirty (30) days, commencing on the date of electronic delivery of the Software (the “Warranty Period”), that the Software if used in accordance with the Documentation, shall operate in conformity with the applicable Documentation. Komprise does not warrant that any Software will meet all of Customer’s requirements or that the use of any Software will be uninterrupted or error free. To the extent the Software fails to conform to the Documentation, Komprise’s sole and exclusive liability to Customer, and Customers sole and exclusive remedy shall be, at Komprise’s election, (i) to use commercially reasonable efforts, to correct any material nonconformities in the Software discovered within the Warranty Period, or (ii) replace the nonconforming Software or (iii) if Komprise is unable to accomplish the foregoing, Customer shall be entitled to a refund of the fees paid less any net benefits realized through accumulated depreciation at date of removal of the non-conforming Software. The above remedies are available only if the Software has not been (a) modified by Customer or any third party; or (b) used, adjusted, or installed other than in accordance with the instructions furnished by Komprise.
  8. Customer Obligations. Komprise is not responsible for the security of Customer’s proprietary, and confidential information or the monitoring of access to Customer’s network or for maintaining adequate procedures apart from the Software to reconstruct lost or altered files, data or programs.  Customer is responsible for its users’ use of the Software in accordance with this Agreement.
  9. Services
  10. Support. While the Software license remains effective and the applicable fees have been paid, Komprise will provide the Support Services (“Support Services”) as described in Exhibit A.
  11. Support Scope. Support Services consist of undertaking reasonable commercial efforts to resolve problems or bugs in the Software which cause the Software not to function in material conformity with the accompanying user Documentation. Support Services shall include both technical support services and software releases.  Use of any new versions of Software will be governed by this Agreement.
  12. Limitations on Scope of Support Services. Support Services do not include: (a) development of custom computer programs, (b) repairs or service relating to any third party software, (c) installation or (d) training.  Support Services does not encompass the remediation of problems or bugs determined by Komprise to have been caused by the failure or malfunction of any software, tools, equipment, or facilities not provided by Komprise.  Support Services extends only to material non-conformities of which Komprise is notified during the Support Term. Support Services does not apply or extend to the Software in the event of (i) installation, repair, addition, alteration, modification or enhancement of the Software, performed by parties other than Komprise; (ii) use of the Software in conjunction with another vendor’s products resulting in the defect or non-conformance; (iii) failure to follow applicable operation or maintenance requirements; (iv) introduction of data, through any method other than through the Software, into any database accessed by the Software; (v) negligence, abuse, mishandling, misuse or damage to the Software; or (vi) failure to follow Software user Documentation.
  13. Updates and Modifications to the Software. Komprise may, in its sole discretion require Customer to perform or automatically perform updates, modifications, reinstallations or the downloading of additional Software or patches to the Software (“Updates”). By running the Software, Customer agrees to permit or to perform all such Updates. Each Update will be deemed a part of the Software and will be subject to this Agreement.  If Komprise changes the Software in a manner that materially reduces the functionality of the Software, Komprise will inform Customer via the email address associated with the account.
  14. Professional Services. Komprise shall provide professional services (“Professional Services”) which consists of configuration and implementation of the Software in accordance with the applicable Quote. In case of a conflict between the Quote and the terms of this Agreement, the Quote shall take precedence. Each project for Professional Services shall be governed by a separate Quote, which shall be signed by Customer and Komprise.
  15. Placement of Komprise Personnel. Komprise shall have the sole responsibility for personnel placement as well as for all other human resources issues (e.g. vacation). Komprise will only utilize employees or contractors that are sufficiently qualified. If specific Komprise personnel cease to perform due to illness, resignation or any other reason, Komprise shall without undue delay use reasonable efforts to provide a substantially equivalent replacement as soon as reasonably possible. Komprise’s contact person responsible for liaising with the customer will exclusively be the person identified by Komprise as being responsible for the project. No employee/employer relationship is intended or shall be established by this Agreement or any Quote.
  16. Customer Responsibilities. Customer shall provide Komprise personnel with timely access to appropriate facilities, space, power, documentation, hardware, networks (including VPN access, internet and telephone), files, information, additional software (if needed), and skilled and authorized Customer personnel to assist in the performance and cooperate with Komprise. Customer shall also perform its specific obligations as described in the relevant Quote, and, if necessary, assist and support Komprise in the provision of the Professional Services as reasonably requested by Komprise, and shall provide all conditions in its business necessary for due performance of Professional Services by Komprise.
  17. Service Warranty. Komprise warrants that the Support Services and Professional Services provided hereunder will be performed in a timely and professional manner by qualified individuals with appropriate expertise.

III.  General Terms

  1. Fees, Payment Terms, Taxes and Purchase Orders. Customer will pay, and authorizes Komprise or Komprise’s authorized reseller to charge using Customer’s selected payment method, for all applicable fees (“Fees”) including any applicable currency exchange settlements in accordance with this section and the applicable Quote. All invoices for Software are due and payable within thirty (30) days from the invoice date. Any payments more than thirty (30) days overdue will bear a late payment fee of 1.5% per month, or, if lower, the maximum rate allowed by law. Except as provided herein, fees are non-refundable and non-cancellable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to Komprise or Komprise’s authorized reseller.. All prices exclude taxes and duties for which Customer is responsible except income taxes imposed on Komprise.  If any applicable law requires Customer to withhold amounts from any payments to Komprise under this Agreement, (a) Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Komprise or Komprise’s authorized reseller with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Komprise or Komprise’s authorized reseller receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Komprise would have received and retained absent the required deduction or withholding. If Customer requires the use of a purchase order or purchase order number, Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will expressly not apply to this Agreement and are null and void. If Customer is purchasing through an authorized reseller, any terms and conditions from the authorized reseller or in a purchase order between Customer and the authorized reseller that conflict with the Agreement shall be null and void.
  2. Auto Renewals and Trials. IF CUSTOMER’S ACCOUNT IS SET TO AUTO RENEWAL OR IS IN A TRIAL PERIOD, KOMPRISE (OR KOMPRISE’S AUTHORIZED RESELLER) MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES KOMPRISE (OR KOMPRISE’S AUTHORIZED RESELLER, AS APPLICABLE) THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL AT LEAST 60 DAYS PRIOR TO THE END OF THE CURRENT TERM. Komprise may revise Fees by providing Customer at least 30 day’s notice prior to the next charge.
  3. Intellectual Property. Customer acknowledges and agrees that Komprise owns all right, title and interest in and to any Documentation, training materials, designs, discoveries, inventions, know-how, techniques, fixes, patches, work-arounds, upgrades, updates, customizations, modifications, enhancements or derivative works of the Software provided by Komprise hereunder. Customer is granted no title or ownership rights in the Software, in whole or in part, or to any diagnostics, tools, test equipment and other items used in the performance of Support Services or as may be furnished by Komprise, included with the Software, or otherwise made available by Komprise. No title to such items is granted to Customer, and such items will remain, as between Customer and Komprise, the exclusive property of Komprise.
  4. Confidential Information. As used in this Agreement Confidential Information (“Confidential Information”) means non-public technical, business and other information and materials that may be disclosed or otherwise made available by one Party (“Discloser”) to the other Party (“Recipient”). Recipient must keep it confidential using the same degree of care that it exercises with respect to its own information of like importance but in no event less than reasonable care, and may use it only for the purposes for which it was provided under the Agreement. Confidential Information may be disclosed only to employees, contractors and third party providers performing services in furtherance of this Agreement for each party’s internal activities, and that are obligated to the Recipient under similar confidentiality restrictions and only for the purposes for which it was provided under the Agreement. These obligations do not apply to information which: (a) is rightfully obtained by the Recipient without breach of any obligation to maintain its confidentiality; (b) is or becomes known to the public through no act or omission of the Recipient; (c) the Recipient develops independently without using Confidential Information of the other party; or (d) is disclosed in response to a valid court or governmental order, if the Recipient has given the other party prior written notice (to the extent allowed) and provides reasonable assistance so as to afford it the opportunity to object to such disclosure. The disclosing party is entitled to appropriate injunctive relief in the event of any unauthorized disclosure or use of its Confidential Information by the Recipient. The provisions of this Section shall survive any termination or expiration of this Agreement.
  5. Publicity. Upon execution of this Agreement, Komprise shall be entitled to represent Customer as a customer of Komprise’s. Customer will allow Komprise to use it as a reference account for marketing purposes, including allowing Komprise to reference Customer (as well as its logo) on its reference account customer lists in print and on its website.
  6. Indemnification. Komprise agrees to defend Customer against any claim, suit, demand or proceeding brought against Customer by a third party alleging that the use of the Software in accordance with this Agreement, infringes or misappropriates the rights of a third party, and shall indemnify Customer against any damages, attorney fees and costs of any final judgment awarded against Customer as a result of and for amounts paid by Customer under a court awarded settlement provided Komprise shall have sole control over the defense and settlement and that Komprise is given all available information and assistance at Komprise’s expense. Komprise shall have no liability under this Section to the extent: (i) Komprise’s creation or performance of Software is in compliance with designs, plans or specifications furnished by or on behalf of Customer; (ii) modification of any Software by anyone other than Komprise; (iii) Software is used in combination with other products, software, processes or materials, where the alleged infringement would not have arisen but for such combination; (iv) use of Software in any way not authorized nor contemplated by this Agreement; (v) failure to use any modification of Software (such as a correction, enhancement, update, or new version or release) within a reasonable time of receipt of such modification from Komprise, or (vi) software not supplied by Komprise or supplied pursuant to an open source license. Komprise shall, at its sole option and expense, to the extent Software is found to infringe provide Customer (i) the right to continue using such Software at no additional expense; (ii) replace or modify such Software with a non-infringing substitute, without any material reduction in functionality or performance; or if the remedies set forth in the preceding portions of this sentence are not obtainable accept return of the Software and reimburse to Customer the Fees paid less any net benefits realized through accumulated depreciation at date of removal. If Customer does not permit Komprise to replace, modify or remove the Software then all Komprise’s liabilities and obligations arising from this section will terminate immediately.  Customer acknowledges and agrees that the remedies provided in this section are the sole and exclusive remedies of Customer with respect to the matters described in this section, and consequently the sole and exclusive liability of Komprise, with respect to any alleged infringement of the Software of any third party intellectual property rights.
  7. Limited Warranty and Disclaimer. EXCEPT TO THE EXTENT STATED IN THIS AGREEMENT, ANY LIABILITY OF KOMPRISE AND ITS LICENSORS WITH RESPECT TO SOFTWARE, SERVICES OR THE PERFORMANCE THEREOF UNDER ANY WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY WILL BE LIMITED EXCLUSIVELY TO KOMPRISE’S USE OF COMMERCIALLY REASONABLE EFFORTS TO CORRECT SUCH NONCONFORMANCE, OR IF SUCH OBLIGATION IS INADEQUATE AS A REMEDY OR, IN KOMPRISE’S OPINION, IMPRACTICAL, TO A PRO-RATA REFUND OF THE FEES PAID.  EXCEPT FOR THE FOREGOING, ALL SOFTWARE AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.  FURTHER, KOMPRISE DOES NOT WARRANT RESULTS OF USE OF THAT THE SOFTWARE IS BUG FREE OR THAT IT’S USE WILL BE UNINTERRUPTED. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY FILE DATA.
  8. Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE) HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT, BREACH OF WARRANTY, OR IN TORT, INCLUDING NEGLIGENCE, AND EVEN IF THAT PARTY HAS PREVIOUSLY BEEN ADVISED OF, OR COULD REASONABLY HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED ABOVE FAILS OF ITS ESSENTIAL PURPOSE. Except for Komprise’s indemnification obligations or Customer’s breach of the Software license grant or restrictions, each party’s aggregate liability to the other for claims arising out of or relating to this Agreement, whether for breach or in tort, is limited to the price charged by Komprise for the Software in the twelve (12) month period preceding the incident.
  9. Assignment. Other than in the context of a merger or acquisition of such party or substantially all of such party’s assets, neither party may assign or otherwise transfer this Agreement to any person or entity without the other’s written consent, such consent not to be unreasonably withheld or delayed.
  10. Term and Termination. This Agreement will commence on the Effective Date and will remain in effect until terminated in accordance with this paragraph. Either party may terminate this Agreement immediately by written notice: (a) if the other party commits a non-remediable material breach; or (b) if the other party fails to cure any remediable material breach within thirty (30) days of being notified in writing of such breach.  Following termination or expiration of this Agreement, each party will deliver to the other any property of the other in its possession or control relating to this Agreement.  Notwithstanding the immediately preceding sentence, neither party shall be obligated to return any property to which it has continuing rights, including the right of possession. Komprise may terminate any Software license rights or support if Customer fails to pay the Fees in accordance with this Agreement. Upon termination, or if a license ceases to be effective, Customer shall immediately cease all use of all affected Software and return or destroy all copies of all affected Software and all portions thereof and so certify to Komprise.
  11. Export Laws. Customer agrees to comply with all applicable export control regulations and acknowledges that they have the responsibility to obtain such licenses to export, re-export or import as may be required.
  12. Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Santa Clara County, California, for any lawsuit filed there against Customer by Komprise arising from or related to this Agreement.
  13. Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the signature page, by courier, by certified or registered mail (postage prepaid and return receipt requested), by a nationally-recognized express mail service or by confirmed email. Notice will be effective upon receipt or refusal of delivery.
  14. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
  15. Survival. Rights and obligations under this Agreement which by their nature should survive, will remain in effect after termination or expiration.
  16. Amendments. No provisions will supersede the terms and conditions of this Agreement, and no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement.
  17. Entire Agreement. This Agreement, including the Addendum, sets forth the entire agreement and understanding between the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, representations and understandings of every condition, definition, warranty, or representation, other than as expressly set forth or provided for in this Agreement.  No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by a duly authorized officer of Customer and Komprise.

 

In witness whereof, the Parties have executed this Agreement by their duly authorized officers on the dates indicated below.

 

Komprise Software, Inc.                                                Customer X

1901 S. Bascom Ave.,

Suite 500, Campbell, CA 95008                                    Address:

 

 

BY:_____________________________                        BY:____________________________

 

NAME:__________________________                        NAME:_________________________

 

TITLE:__________________________                         TITLE:__________________________

 

DATE:__________________________                         DATE:__________________________

 

 

 

Exhibit A

Komprise Support Services

These service level terms set forth the Komprise policies and procedures with respect to any Software ordered by a Customer pursuant to a Quote and the Agreement.

  1. Problem Classifications and Definitions
Classification Description
P1 – Critical 1) Service is completely unavailable or performance is so poor as to render the Service unusable
2) Data security breach or hack (whether actual or suspected) or attempted data security breach.
3) End user issue on the Customer Site relating to the Service that is a critical issue under the applicable contractual Escalation Procedure or is reasonably determined by Customer to be a critical end user issue (including, without limitation, threat of imminent violence).
P2 – High A major functionality of Service is unusable which results in limited functionality and affects a large number of users
P3 – Medium There is a loss of a function or resource of the Service that does not seriously affect Service functionality on a Customer Site.
P4 – Low All other problems with the Service on a Customer Site other than those falling within the categories above, including feature requests.

 

  1. Support and Escalation Process
    There are multiple ways to contact Komprise Support and initiate a support request:
  • Komprise on-line support desk: https://komprise.freshdesk.com  to either create a support ticket or chat with a Komprise support personnel.
  • Use the chat in the Software to contact a Komprise support personnel.
  • Call Komprise: 1-888-955-1290

All support communication will result in the generation of a support ticket with different levels of personnel escalation depending upon classification. This is a highly automated system that ensures that your issue is routed to the appropriate individual in the least amount of time possible, and so that issues can be tracked to completion.   All issues should include an appropriate classification and described above.  If no classification is specified, Komprise will default the ticket to a P3 classification.  When creating a support ticket please be sure to include a detailed description of the issue in the body of your message – the more detail provided the better we will be able to troubleshoot. This may include screenshots, error messages or logs, system and/or browser information, etc. if available and/or useful.   Please reserve the P1 classification for critical issues as described above. The P1 classification is escalated to multiple personnel, regardless of time of day.

  1. Problem Escalation and Resolution Criteria

Komprise will use commercially reasonable efforts to resolve technical issues based on the response timeframes for each classification set forth below.

Classification Response Time
P1 – Critical 60 minutes
P2 – High 2 hours
P3 – Medium Next business day
P4 – Low 2 business days

 

Komprise provides 24X7 customer support with support offices in the US (west coast) and India.