End User License Agreement

IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITES, PRODUCTS, SERVICES, AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “SERVICES”) OF KUBERNETES INNOVATION LABS LLC AND ITS PRODUCTS, INCLUDING BUT NOT LIMITED TO THOSE SUBSIDIARIES DOING BUSINESS AS BOTKUBE, KUBEFIRST, MONOKLE, TESTKUBE, AND TRACETEST (COLLECTIVELY, “KUBESHOP”) IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THIS END USER LICENSE AGREEMENT, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.

This End User License Agreement (the “EULA” or the “Agreement”) is a legal agreement between Kubernetes Innovation Labs LLC (“us”, “our”, “we”, “the Company” or “Kubeshop”) and you, the Client (“you” or “Client”) (collectively, the “Parties”), who directly uses one or more of the Services (as defined above) which Kubeshop provides.

Kubeshop may, at its discretion, wish to grant the Client a license to use the Services pursuant to this Agreement. The Parties agree that this Agreement governs Client’s use of the Services and agree that this Agreement shall govern and be incorporated by reference in any additional agreements between Kubeshop and Client.

Additional Terms That Apply to You

In addition to this Agreement, Client’s use of the Services may also be governed by additional terms and policies (the “Additional Terms”), incorporated into this Agreement, which cover Client’s agreement to both accept terms and receive notices online, describe how we process personal data, and outline specific responsibilities regarding specific Services. We encourage you to read and understand this Agreement and all Additional Terms before using the Services.

The following Additional Terms, if applicable to your access or use of the Services, are incorporated by reference into this Agreement:

• Privacy Policy. You acknowledge the relevant Service’s Privacy Policy. Please read it carefully to understand how your information is collected, used, and shared in connection with the Services.
• Product-Specific Terms of Service. A Service may have specific terms that apply to your use of that particular Service. These product-specific terms shall be listed in the footer of the relevant Service’s website.
• Service Level Agreement. Client may agree to a Service Level Agreement with Kubeshop, or Client’s use of the Services may be governed by a Service Level Agreement. If applicable to the relevant Service, such Service Level Agreement is herein incorporated by reference.

We may revise this Agreement from time to time. We will use reasonable efforts to notify you of material changes to this Agreement in advance of their effectiveness, including by posting notice on the applicable Services or providing notice via an email address or physical address associated with you. The revised Agreement will be effective on the date stated in the revised Agreement. By using a Service after any revisions become effective, you shall be deemed to have agreed to such revisions. If you do not agree with any changes to this Agreement, you must stop using the Services.

1. Definitions

"Agreement" means this End User License Agreement, including any Exhibits, Schedules, and changes as made by Kubeshop from time to time;

"Business Day" means any weekday other than a bank or public holiday in the State of Delaware;

"Business Hours" means the hours of 09:00 to 17:00 Eastern Standard Time on a Business Day;

"Documentation" means those user guides, release notes, blog posts, forum posts, and other materials prepared, provided, and/or made available by the Company to the Client regarding the use or operation of the Services;

"Exhibit" means any Exhibits or Schedules attached to the main body of this Agreement;

"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, quarantine, explosions, fires, floods, riots, terrorist attacks and wars);

"License" means the license to access, install, or otherwise use the Services granted by Company to Client for the Term as defined in the first sentence of Section 2.1 (License Grant) hereof;

"Order" means a separate commercial agreement between the Company and Client governing Client’s access to and payment in exchange for access to the Services;

"Services" means any Software (as defined below), website, platform, application (whether downloaded or accessed via cloud), application programming interface, framework (including but not limited to any hosting, testing, or deployment environment), configuration, or template developed by the Company and provided to the Clientunder this Agreement;

"Software" means the object code version of the specific Company Service, including any computer or mobile software licensed to Client under an Orderand including any updates, modifications, new versions or releases;

"Software Support" means the Software support and maintenance services provided for the Service to Client in accordance with this Agreement (including the applicable Order) and as described in the Software Support Guide;

"Software Support Guide" means the Company’s published support guidelines, as updated by the Company from time to time;

"Support Services" means support in relation to the use of the Service and the identification and resolution of errors in the Client’s use of the Service, but shall not include the provision of training services whether in relation to the Service or otherwise;

"Term" means the period(s) specified in an Order during which Client will have a License (and/or access to Support Services), as the same may be renewed or extended in accordance with the Order and Section 10.1 (Agreement & Term Renewal) hereof.

2. Grants.

2.1. License Grant.

During the Term of any License purchased by Client and subject to this Agreement, the Company grants Client a limited, non-exclusive, non-transferable (except as otherwise set forth herein), non-sublicensable license to access, install, execute, copy, display or otherwise use the Services solely for Client’s purposes and in accordance with the Documentation. Client may make a reasonable number of copies of the Software in machine-readable form solely for archive or backup purposes in accordance with Client’s standard archive or backup policies and procedures. Client’s use of the Services to manage greater than the number of seats, instances, or other defining term included in a purchased License pursuant to an Order is prohibited and any such use will be subject to additional License fees.

2.2. Company’s Right to Revoke.

The Company reserves the right to deactivate and/or delete both data and accounts associated with both individual users and entire organizations of the Client at the Company’s sole discretion and without prior notice, for any reason or no reason, including but not limited to violations of this Agreement, harmful, inappropriate, or offensive materials, or actions that the Company believes may violate any applicable laws or regulations.

At its sole discretion and without prior notice, the Company may deactivate, delete, or suspend access to the Services for an entire organization of the Client. This may affect an individual user’s ability to access the Services. Similarly, the Company may deactivate or delete an individual user's account or access to the Services without affecting the account or access of other users with similar organizational access. In accordance with any applicable laws or regulations, the Company may retain archives of deactivated users, organizations, or deleted data for as long as is reasonably necessary to comply with such laws or regulations.

The Company shall not be liable for any damages resulting from the deactivation or deletion of any data at any level, including but not limited to loss of profits, business interruption, or data loss. Upon deactivation or deletion of any data, the Company shall notify the affected user, organizational/company, or data subject within 48 hours of such action.

3. Titles and Restrictions.

3.1. Title and Copyright.

This Agreement confers no ownership rights to Client and is not a sale of any rights in the Services, Software, Documentation, or the media on which either is recorded or printed. Client does not acquire any rights, express or implied, in the Services, Software, or Documentation, other than those rights as a licensee specified in this Agreement. All Services, Software, and Documentation furnished by the Company, and all copies thereof made by Client and all compilations, derivative products, programmatic extensions, patches, revisions, and updates made by either party, and any, patent rights, copyrights, trade secrets, trademarks, trade names, service marks, designs or design marks or proprietary inventions, designs and information included within any of the items described above are and shall remain the property of the Company or Company’s licensors, as applicable. Client agrees not to claim or assert title to or ownership of the Services, Software, or the Documentation. Client will not remove or alter any copyright or proprietary notice from copies of the Software or Documentation, and copies made by or for Client shall bear all copyright, trade secret, trademark and any other intellectual property right notices appearing on the original copies.

3.2. Restrictions

Client will not, nor allow any third party to, reverse engineer, decompile or attempt to discover any source code or underlying ideas or algorithms of any Services or Software. Except as mutually agreed to in writing as an exception under this Agreement, Client will not, nor allow any third party to modify, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use Software for the benefit of any third party. Client agrees to promptly report to the Company any violations of these provisions by Client’s employees, consultants or agents of which Client is aware.

4. Orders and Delivery

4.1. Orders.

Client may purchase a license to access the Services and Software by entering into an Order with the Company directly through its online purchasing options, or through such other means as Company may dictate from time to time. Client may purchase additional licenses to access the Services by executing a follow-on Order as outlined in the terms of the Order or through such other processes as Company may dictate from time to time.  All licenses to access the Services purchased by Client shall be governed exclusively by this Agreement and the applicable Order.

4.1.1. Orders with the Company.

A purchase order issued by the Client shall be in writing and identify the Services being ordered, the shipping and invoicing locations, and shall be subject to acceptance by the Company. In the event Client does not issue a purchase order, a new Order shall be executed by Client and Kubeshop to evidence the Order.

4.2. Delivery.

The Company shall fulfill Orders by delivering the Service sand Documentation via access to a cloud-hosted version of the Software or via access to an electronic download, subject to the relevant Services and subject to receipt by the Company of all required documentation. Client’s Order shall be considered delivered on the date that Company emails, or otherwise causes to be delivered, to Client instructions for accessing or downloading the Software and Documentation , or the date that Client is granted access to the Services through such other means as Company shall determine.

5. Payment.

In consideration for the Services provided, the Client shall pay the Company in accordance with the terms of the applicable Order. Except to the extent set forth otherwise in this Agreement or the Order, amounts due by Client to Company include VAT and other applicable taxes. The parties agree that, notwithstanding the terms of the Order, the Company may elect to modify the payment terms for the Services upon 30 days written notice to Client of any modification.

5.1. Payment Terms.

Unless otherwise specified in the Order, Client’s payment to the Company will be remitted monthly via ACH, check, debit card, or credit card. Failure by Client to make payment within five (5) business days of the date set out in the Order may result in the suspension of the Client’s access to the Services and a 10% interest charge on such overdue payment, subject to the terms of the Order.

6. Support Services

The Company shall provide Support Services with reasonable skill and care to the Client in accordance with the Software Support Guide and/or the Order throughout the Term, unless there is cause for a suspension of Support Services as outlined in Section 6.1 of this Agreement.

6.1. Suspension of Support Services

The Company may suspend Support Services if the Client has overdue fees payable to the Company as defined by Section 5.1 of this Agreement. The Company must give the Client at least five (5) days written notice in advance of the date upon which the suspension of Support Services will commence. Suspension of Support Services will remain until overdue fees are received by the Company or until such other time as the Company may in its sole discretion determine.

7. Warranties.

Each party warrants that is has full corporate power and authority to execute this Agreement and to perform its obligations hereunder; and all corporate action necessary for the authorization, execution, delivery, and performance of this Agreement by it have been taken. The Client warrants that it is authorized to provide the Company with access to the requested data, documents, and similar requests for the purpose of fulfilling this Agreement. The Company represents and warrants that the services shall comply with agreed specifications in all material respects. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT, THE SERVICES, SOFTWARE,  AND DOCUMENTATON PROVIDED BY COMPANY IN ACCORDANCE WITH THIS AGREEMENT ARE PROVIDED “AS IS” AND COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERATBILITY, CONDITION, TITLE, NON-INFRINGEMENT, ACCURACY OF DATA OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PRPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN.

8. Limitation of Liability.

IN NO EVENT SHALL THE COMPANY (OR ITS DIRECTORS, OFFICERS, AFFLIATES, AGENTS, OR EMPLOYEES) HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SOFTWARE OF SERVICES PROVIDED. THE COMPANY SHALL HAVE NO LIABILITY FOR ANY ACTIONS, OMISSIONS, OR NEGLIGENCE OF THE CLIENT’S DIRECTORS, OFFICERS, AFFLIATES, AGENTS, OR EMPLOYEES.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN RESPECT OF ANY LOSS OF PROFITS OR ANTICIPATED SAVINGS; ANY LOSS OF REVENUE OR INCOME; ANY LOSS OF USE OR PRODUCTION; ANY LOSS OF BUSINESS, CONTRACTS, OR OPPORTUNITIES; ANY LOSS OF CORRUPTION OF ANY DATA, DATABASE, OR SOFTWARE; ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES, LICENSE OR THE SUPPORT SERVICES PROVIDED PURSUANT TO THIS AGREEMENT EXCEED THE LICENSE FEES PAID AND/OR PAYABLE BY CLIENT TO COMPANY UNDER THE ORDER GIVING RISE TO THE CLAIM FOR THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR OTHER SERVICES, IN NO EVENT SHALL EACH PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNT OF FEES PAID AND/OR PAYABLE FOR THE OTHER SERVICES BY CLIENT TO COMPANY UNDER THE ORDER GIVING RISE TO THE CLAIM FOR THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

FURTHERMORE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, RELIANCE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) WHETHER ARISING FROM CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF THE DAMAGES, EXCEPT IN CASES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9. Force Majeure Event.

Neither party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any Force Majeure Event. A party that becomes aware of a Force Majeure Event which causes, or which is likely to cause, any failure or delay in performance of an obligation of this Agreement must promptly provide written notice and an estimate of the amount of time for which the failure or delay is estimated to continue.

10. Term and Termination.

10.1. Agreement and Term Renewal.

This Agreement shall be in effect during the Term of any Order governed by this Agreement and shall continue in effect for so long as there is an Order arising under this Agreement with a current Term unless this Agreement or all Orders are terminated as set forth herein. At the end of an Order’s Term, Client may renew the Term by executing a follow-on Order as outlined in the terms of the Order or through such other processes as Company may dictate from time to time.

10.2. Termination.

This Agreement and any Order(s) executed hereunder may be terminated (i) by mutual agreement of the Company and Client, (ii) by either party if the other party commits a material breach of this Agreement and fails to cure the breach within thirty (30) days following receipt of breach notice, or (iii) by either party if the other party becomes insolvent or is adjudged as bankrupt; makes an assignment for the benefit of creditors; has a receiver appointed; or files a petition of bankruptcy, or (iv) by Company at any time for any reason at Company’s sole discretion upon thirty (30) days written notice to Client.

10.3. Effects of Termination.

Upon termination of this Agreement, all of the parties’ respective rights and obligations hereunder shall cease, except that the sections of the Agreement entitled: “Titles and Restrictions”, “Payment”, “Intellectual Property Indemnification”, “Limitation of Liability”, “Effects of Termination”, and “General” shall survive the termination. Except to the extent expressly provided in this Agreement, termination shall not affect the accrued rights of either party.

10.4. Payment after Termination.

Regardless of reason for termination, within 30 days following termination of this Agreement, the Client must pay the Company all outstanding fees owed by Client to Company for Client’s access to the Services.

11. Intellectual Property Indemnification

11.1. Indemnification

Subject to Section 11.2 (Indemnity Process) below, Company will defend Client from all claims, demands, suits, or proceedings brought against Client by a third party alleging that the Services, as provided by Company to Client under this Agreement, infringes any patent, copyright, or trademark or misappropriates any trade secret of that third party (each, an “Infringement Claim”). Company will indemnify Client for all damages and costs (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction, authorized arbitral panel, or paid to a third party in accordance with a written settlement agreement signed by Company, in connection with an Infringement Claim. In the event an Infringement Claim is brought, or in Company’s reasonable opinion is likely to be brought, Company may, at its option: (a) procure the right to permit Client to continue use of the Services, (b) replace or modify the Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (c) if Company determines that neither of the foregoing options are reasonably practicable, terminate this Agreement and, if Client is timely on payments for the Services, refund any prepaid fees for the infringing Services paid by Client to Company for the period of time from the date the infringing Services were returned through the end of the paid up portion of the current Term. Notwithstanding the foregoing, Company shall have no liability for any Infringement Claim of any kind to the extent that it relates to Services or portions or components thereof (i) not supplied by Company, (ii) made in whole or in part in accordance to Client specifications, (iii) modified by a party other than Company after delivery to Client, (iv) used in combination with any other product, process, materials, service, or device, if the infringement would have been avoided by the use of the Services without the other product, process, materials, service, or device, or (v) where Client continues use of the infringing Services following Company’s supplying a modified, amended or replacement version of the Services, or (vi) use of the Services other than in accordance with this Agreement. Client will reimburse Company for any reasonable out of pocket expenses incurred by Company if the cause of the infringement is attributable to Client’s actions as stated in this paragraph. THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 11.1 ARE CLIENT’S EXCLUSIVE REMEDY AND COMPANY’S SOLE LIABILITY WITH RESPECT TO COMPANY’S INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

11.2. Indemnity Process

With respect to claims for indemnification pursuant to Section 11.1 (Indemnification) above, Client must (a) promptly notify Company of the claim (provided that any failure to provide prompt written notice will only relieve the Company of its obligations to the extent its ability to defend the claim is materially prejudiced by the failure), (b) give Company sole control of the defense and settlement of the claim (provided that Company shall not consent to entry of any judgment or admission of any liability of Client without the prior written approval of Client), and (c) provide reasonable assistance, cooperation, and required information with respect to the defense and settlement of the claim, at Company’s expense. At its own expense, Client may retain separate counsel to advise it regarding the defense or settlement of the claim.

12. General.

No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.

13. Assignment of Company’s Obligations.

Subject to any express restrictions elsewhere in this Agreement, the Company may assign any of its obligations under this Agreement, providing the Company promptly provides written notice to the Client following an assignment, specifying the assigned obligations and identity of parties receiving assignment. The Company shall remain responsible to the Client for the performance of any assigned obligations.

14. Severability.

If any provision of this Agreement, or its application to any person or circumstance, is held invalid, illegal, or unenforceable by a court of law or other body with legal effect, the remaining provisions of this Agreement, and such provisions as applied to all other persons and circumstances, shall remain valid and legally enforceable to the fullest extent permitted by law, as to give effect, insofar as is possible, to the original intent of the parties.

15. Transferability.

This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party. Neither party, except as provided in Section 12, may terminate this Agreement without the prior written consent of the other party, assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement. Interpretation.

16. Interpretation.

When a reference is made in this Agreement to an Article, Section or Exhibit, such reference shall be to an Article or Section of, or an Exhibit to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include", "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". The words "hereof", "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions in this Agreement are applicable to the singular and plural forms of such terms and to the masculine and to the feminine and neuter genders of such term. Any Agreement, instrument or statute defined or referred to herein or in any Agreement or instrument that is referred to herein means such Agreement, instrument, or statute as from time to time amended, modified, or supplemented, including (in the case of Agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns.

17. Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The courts of the state of Delaware shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

18. Contact.

Client may contact Company with any questions about this Agreement at:

frontdesk@kubeshop.io

20 Brynwood Lane
Attn: Kubeshop
Greenwich, CT 06830