Last updated: May 12, 2023
IMPORTANT, READ CAREFULLY: YOUR USE OF AND ACCESS TO THE WEBSITE AND PRODUCTS AND SERVICES AND ASSOCIATED SOFTWARE (COLLECTIVELY, THE “SERVICES”) OF KUBESHOP LLC AND ITS PRODUCTS INCLUDING BUT NOT LIMITED TO, BOTKUBE, LLC; KUBEFIRST, LLC, MONOKLE, LLC, TESTKUBE, LLC, TRACETEST, LLC (“KUBESHOP”) IS CONDITIONED UPON YOUR COMPLIANCE AND ACCEPTANCE OF THESE END USER TERMS OF SERVICE, WHICH INCLUDE YOUR AGREEMENT TO ARBITRATE CLAIMS. PLEASE REVIEW THOROUGHLY BEFORE ACCEPTING.
These End User Terms of Service (“Terms”) are a legal agreement between us ( “us”, “our”, “we”, “the Company” or “Kubeshop”) and you, the (“Client”), collectively the (“Parties”), who directly uses one or more products and services we offer for your personal use under these Terms, including through applications, websites, and software (each, a “Service” ).
Kubeshop is the provider of Software Offerings and Other Services, which the Client wishes to obtain a license to use the Software and receive the benefit of other Software Offerings and possibly Other Services pursuant to the Terms and Conditions of this Agreement. The Parties desire that this Agreement govern Client’s use of Software purchased under any Order (as defined below) that Client may place with Kubeshop or a Partner (as defined below), from time to time.
There are additional terms and policies that are incorporated into these Terms, which cover your agreement to both accept terms and receive notices online, how we process personal data and cover specific End User Services with additional requirements. We encourage you to read them all before using the End User Services.
The following additional policies and terms also apply when you access or use the End User Services, all of which are incorporated by reference into these Terms:
Product-Specific Terms of Service. An End User Service may have specific terms that apply when you use that particular End User Service. These product-specific Terms are listed in the footer of the respective product’s website.
We may revise these Terms from time to time. We will use reasonable efforts to notify you of material changes to these Terms in advance of their effectiveness, including by posting notice on the applicable End User Services or providing notice via an email address or physical address associated with you. The revised Terms will be effective on the date stated in the revised Terms. By using an End User Service after any revisions become effective, you agree to those changes. If you do not agree with any changes to these Terms, you must stop using the End User Services.
“Agreement” means this Agreement including any Exhibits, Schedules, and any amendments to this Agreement 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 the user guides and release notes provided or made available by the Company to the Client regarding the use or operation of the Software Offerings;
"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 Software granted in the first sentence of Section 2.1 (License Grant) hereof.
"Services" means any services the Company provides to the Client, or has an obligation to provide to the Client, under this Agreement;
“Software” means the object code version of the specific Company computer software licensed to Client under an Order as Term License Software or Perpetual License Software, including any updates, modifications, new versions or releases.
“Software Offering” means the Software and Software Support provided to Customer pursuant to an Order.
“Software Support” means the Software support and maintenance services provided for the Software to Customer in accordance with this Agreement (including the applicable Order) and as described in 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 Software and the identification and resolution of errors in the Software, but shall not include the provision of training services whether in relation to the Software or otherwise;
“Term License” means a license to install and use Software within the scope of Section 2.1 (License Grant) below on a subscription basis for finite period of time typically measured in monthly increments and stated on an Order at time of purchase as the applicable Term.
“Term” means the period(s) specified in an Order during which Client will have a License (and/or access to Software Support or Other Services), as the same may be renewed or extended in accordance with the Order and Section 10.1 (Agreement & Term Renewal) hereof.
During the Term of any Software License purchased by Client and subject to these Terms and Conditions, the Company grants Client a limited, non-exclusive, non-transferable (except as otherwise set forth herein), non-sublicensable license to install, execute, copy, display or otherwise use the Software 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 Software to manage greater than the number of seats, instances, or other defining term, included in a purchased License is prohibited and any such use will be subject to additional License fees.
The Company reserves the right to deactivate and/or delete both data and accounts associated with both individual users and entire organizations 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 Software for an entire organization. This may affect an individual user’s ability to access the Software. Similarly, the Company may deactivate or delete an individual user's account or access to the Software 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.
This Agreement confers no ownership rights to Client and is not a sale of any rights in the Software, the Documentation, or the media on which either is recorded or printed. Client does not acquire any rights, express or implied, in the Software or the Documentation, other than those rights as a licensee specified in this Agreement. All 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 Software or the Documentation. Client will not remove or alter any copyright or proprietary notice from copies of the Software or the 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.
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 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 Customer is aware.
Customer may purchase a license to a Software Offering and/or Other Services by entering into an Order with the Company directly through its online purchasing options. Client may order additional Software Offerings and/or Other Services by executing a follow-on Order as contemplated in this Section 4.1. All Software Offerings and/or Other Services ordered by Client shall be governed exclusively by this Agreement and the applicable Order.
A purchase order issued by the Client shall be in writing and identify the Software being ordered, the shipping and invoicing locations, and shall be subject to acceptance by the Company. In the event Customer does not issue a purchase order, a new Order shall be executed by Customer and SailPoint to evidence the Order.
The Company shall fulfill Orders by delivering Software and Documentation via access to electronic download, subject to the receipt by the Company of all required documentation. Client’s Order shall be considered delivered on the date that Company emails Client instructions for downloading the Software and Documentation or likewise, is granted access through other means.
In consideration for the Services provided, the Client shall pay the Company in accordance with this Agreement as specified in Exhibit A. Except to the extent set forth otherwise in this Agreement, amounts due hereunder include VAT and other applicable taxes. The parties agree the Company may elect to modify provisions of the platform costs by giving the Client 30 days written notice of any proposed modification.
Client’s payment to the Company will be remitted monthly via ACH, Check, Debt card, or credit card. Failure of payment after five (5) business days may result in the suspension of the Client’s access to the services and/or a 10% interest charge on such overdue payment.
The Company shall provide Support Services with reasonable skill and care to the Client in accordance with the Software Support Guide and/or Exhibit A throughout the Term, unless there is cause for a suspension of Support Services.
The Company may suspend Support Services if the Client has overdue fees payable to the Company as defined by 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.
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.
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.
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 SERVICES SUPPORT 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.
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 for which the failure or delay is estimated to continue.
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 the Agreement or all Orders are terminated as set forth herein. At the end of an Order’s Term, Customer may renew the Term by executing a follow-on Order referencing this Agreement with fees to be agreed between: (i) SailPoint and Customer for Software Offering(s) or Other Services purchased by Customer directly through SailPoint; or (ii) Partner and Customer for Software Offering(s) or Other Services purchased by Customer through a Partner.
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 for any reason or 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.
Upon termination of this Agreement, all of the parties’ respective rights and obligations hereunder shall cease, except that the sections of the Agreement entitled: “Title and Restrictions”, “Payment”, “Warranty Disclaimer”, Intellectual Property Indemnification”, “Limitation of Liability”, “Confidentiality”, “Effect 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.
Regardless of termination reason, within 30 days following termination of this Agreement, the Client must pay the Company any outstanding fees for services rendered.
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.
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.
No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach. This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
All notices, statements or other documents which are required or contemplated by this Agreement shall be:
(a) In writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing;
(b) By facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party; or
(c) By electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party.
Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
Subject to any express restrictions elsewhere in this Agreement, the Company may assign any of its obligations under this Agreement, providing the Company promptly provide written notice to the Client following an assignment, specifying the assigned obligations and identity. The Company shall remain responsible to the Client for the performance of any assigned obligations.
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.
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 t 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.
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.
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.
This Agreement represents and embodies all the Agreements and negotiations between the parties hereto and no prior or contemporaneous, oral, or written Agreements or correspondence prior to the date of execution of this Agreement shall be held to vary the provisions hereof.