Product
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Trial Agreement

Major Tom Software Trial Agreement

This Major Tom Software Subscription Agreement – Trial (“SSA”) by and between Kubos Corporation, a Delaware corporation located at 608 E Hickory Street, Suite 128, Denton, TX 76205 (“Kubos”), and the customer identified on a signed Order Form (“Customer”), governs the provision of any Subscriptions, Services, and other materials or information provided by Kubos to Customer. This SSA, Order Form(s), exhibits or statements of work(s) separately executed by the parties, and other documents expressly referenced herein or referencing this SSA are collectively referred to as the “Agreement.” Unless specified to the contrary in an Order Form, this Agreement will be effective on the date of Customer’s signature on the Order Form (the “Effective Date”).

1. CUSTOMER OBLIGATIONS.

1.1 Customer Control. Customer will be solely responsible for administering and monitoring the use of login IDs and passwords provided by Primary User within the Subscription or on behalf of Customer by Kubos. Upon the termination of employment of any User or Primary User, Customer will terminate that individual’s login ID and password. Kubos is not responsible for any damages resulting from Customer’s failure to manage the confidentiality of its login ID and passwords and Customer is responsible for any actions arising out of use or misuse of Customer’s login IDs.

1.2 Prohibited Uses and Customer Restrictions. Customer must not modify, rent, sublease, sublicense, assign, use as a service bureau, copy, lend, adapt, translate, sell, distribute, derive works from, decompile, disassemble or reverse engineer the Kubos Technology provided under this Agreement, except as explicitly permitted hereunder. Unless otherwise expressly set forth in an Order Form, the Subscription and Services must be used solely by Customer, and not (by implication or otherwise) by any parent, other division, subsidiary or affiliate of Customer. Customer must not permit a competitor of Kubos to access the Kubos Technology, except with Kubos’ prior written consent. Customer must not: (a) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs in, to or from the Kubos Technology; (b) interfere with or disrupt the integrity or performance of the Kubos Technology, or the data contained therein; (c) use the Kubos Technology in a manner inconsistent with its applicable documentation; or (d) attempt to gain unauthorized access to the Kubos Technology or related systems or networks.

2. OWNERSHIP, RIGHTS & CONFIDENTIAL INFORMATION.

2.1 Customer Ownership and License. As between Customer and Kubos, and subject to the rights of Kubos set forth below, Customer owns all right, title and interest in and to all Customer Data and all Customer-provided marketing plans, designs, images, templates, sketches, artwork, logos, trade names, trademarks, and website or email text copy and type (“Customer Content”). Customer has sole responsibility for the accuracy, quality and right to use of all Customer Data and Customer Content.

2.2 Results. Customer acknowledges and agrees that Kubos may (a) anonymize and aggregate benchmarking results of Customer use of the Kubos Technology with results of other customers’ use (collectively “Results”); and (b) use and disclose the Results for any purpose provided that the Results do not individually identify Customer or Customer Data.

2.3 Kubos Ownership. As between Customer and Kubos, Kubos and/or its licensors are the sole owners of all right, title and interest in and to the Kubos Technology. If Customer provides any feedback, comments, suggestions, ideas, requests or recommendations for modifications or improvements to the Kubos Technology (“Feedback”), Customer hereby assigns and agrees to assign all right, title and interest in any such Feedback to Kubos to be used for any purpose. All rights not expressly granted to Customer hereunder are reserved by Kubos and its licensors.

2.4 Kubos Technology License. Subject to payment in full to Kubos as specified in an Order Form, Kubos grants Customer a royalty free, non-exclusive, non-transferable, time-bounded license to use, for Customer’s internal business purposes only and subject to the terms of this Agreement, the Kubos Technology as included in Subscriptions, maintenance and Services. For use in connection with Subscriptions and Services, the term of Customer’s permitted use will be the duration of the Subscription.

2.5 Confidential Information. “Confidential Information” means any information disclosed by one party (“Discloser”) to the other party (“Recipient”), either directly or indirectly, in writing, orally or by inspection, which is designated as “Confidential,” “Proprietary” or some similar written designation or otherwise reasonably identifiable as confidential information. Information communicated orally will be considered Confidential Information if the information is identified as being Confidential Information at the time of disclosure. Notwithstanding the foregoing, the following is deemed Kubos Confidential Information with or without marking or written confirmation: (a) the Kubos Technology, product and service information, pricing information, and other related materials furnished by Kubos; (b) the oral and visual information relating to the Kubos Technology; (c) the Subscription’ environment and tools, materials, documentation, whitepapers, guides, data sheets, training materials, methodology and (d) the terms and conditions of this Agreement. This Agreement imposes no obligation upon a Recipient with respect to Confidential Information that: (a) is or becomes publicly available through no breach of this Agreement by Recipient; (b) is already in the possession of Recipient at the time of disclosure as shown by Recipient’s files and records immediately before the time of disclosure; (c) is obtained by Recipient from a third party without obligation of confidentiality; or (d) is independently developed by Recipient without use of or reference to Discloser’s Confidential Information, as demonstrated by Recipient’s documents. Recipient will only use Discloser’s Confidential Information to exercise its rights or perform its obligations under this Agreement and will protect Discloser’s Confidential Information by using the same degree of care that Recipient uses to safeguard its own confidential or proprietary information of a like nature from unauthorized use, disclosure, or dissemination, but not less than a reasonable degree of care. Recipient will restrict access to Discloser’s Confidential Information to Recipient’s employees and Consultants who require such access in the course of their assigned duties and responsibilities and who have been informed of Recipient’s obligations of confidence and have agreed in writing to preserve confidentiality of such information under terms and conditions no less restrictive than those set forth herein, provided that Customer must not permit a competitor of Kubos to access Kubos’ Confidential Information without Kubos’ prior express written approval. If Discloser’s Confidential Information is required to be disclosed under any law or judicial order, Recipient will (to the extent permitted by law) give Discloser prompt notice thereof and use its commercially reasonable efforts to seek or cooperate with Discloser in seeking a protective order at Discloser’s request and expense. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information may cause the other party irreparable harm and that such party will be entitled to seek injunctive relief in the event the other party does not fulfill its obligations under this Section.

3. LIMITATON OF LIABILITY.

3.1 Liability Cap. IN NO EVENT WILL KUBOS, KUBOS’S LICENSORS OR CONSULTANTS BE LIABLE UNDER ANY THEORY OF LIABILITY, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SUBSCRIPTION AND SERVICES GIVING RISE TO SUCH DAMAGES IN THE ONE (1) YEAR PERIOD PRIOR TO THE CLAIM.

3.2 Disclaimer of Damages. IN NO EVENT WILL KUBOS, KUBOS’S LICENSORS OR CONSULTANTS BE LIABLE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOST PROFITS EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

10. EXPORT CONTROL.

10.1 Export Control. The Customers agrees and certifies to use best efforts to ensure that Kubos Technology will not be given, distributed, leased, or in any way made available to any person, business, entity, governmental unit, or government in or of any country which the U.S. government, through the Department of Commerce or any other department, lists as a country to whom the distribution of the Software is prohibited by law.
The Customer will not reexport Kubos Technology to any destination, or export the direct product of the technology, directly or indirectly, to a country listed in Country Group D:1, E:1, or E:2 of Supplement No. 1 to Part 740 of EAR without prior authorization from Bureau of Industry Security of the US Department of Commerce.
In the event that an export license is required and Kubos is unable to obtain an export license from the US Department of Commerce for the export of Kubos Technology to either Company or the End User, or if said license is revoked, Kubos will refund all compensation to the Customer and the remaining responsibilities of all Parties in this Agreement will be terminated.

Major Tom Acceptable Use Policy
  1. General. This Acceptable Use Policy (“AUP”) addresses requirements applicable to Customer’s use of the Major Tom Subscription. Capitalized terms not otherwise defined herein will have the meanings set forth in the Software Subscription Agreement.
  2. Appropriate Use. Customer and Customer’s Users may only use the Subscription for lawful purposes. Customer may not use nor allow its Users to use the Subscription in connection with any (a) infringement or misappropriation of any copyright, trademark, patent, trade secret or other intellectual property rights; (b) defamation, libel, slander, obscenity or violation of the rights of privacy or publicity; (c) promotion of violence, hatred, or racial or religious intolerance; or (d) any other offensive, harassing or illegal conduct. Kubos will cooperate with law enforcement and other authorities in investigating claims of illegal activity or suspected illegal activity, including, but not limited to, illegal transfer or publication of copyrighted material. If Customer violates any portion of this Acceptable Use Policy, Customer accepts sole responsibility for all remedial actions and costs related to such violation(s), including but not limited to, compliance efforts and costs associated with statutory obligations or government investigations.
  3. Responsibility for Content. Customer understands and agrees that, for the purposes of applicable law, Kubos is an internet-¬based software as a service provider, and Customer provides information content. Customer accepts sole responsibility for information and content collected, stored or transmitted by the Subscription on behalf of Customer or its Users. Customer acknowledges that Kubos exercises no control over the information passing through the Kubos Technology or system, and that Kubos assumes no responsibility for Customer content.
  4. Prevention of Malware. Customer will ensure that Customer content does not contain malicious software, for example, computer viruses, “Trojan horse” software, or logic bombs, which might cause damage to Kubos or third-¬party computer systems or otherwise make modifications to those systems not authorized by their owners (“Malware”).
  5. Personal Information. Customer will not use Kubos Subscription to:
    • Collect or store U.S. Social Security Numbers, drivers’ license or other personal identification numbers issued by any government or financial institution; or
    • Collect, store or otherwise handle personal information in a manner not disclosed by Customer to the user, or in violation of any applicable state or federal laws; or
    • Collect, store or transmit Personal Health Information (“PHI”) as defined by HIPAA if Customer is a Covered Entity as defined by HIPAA if Customer is a Covered Entity as defined by HIPAA.
  6. System and Network Security. Kubos strictly prohibits the use of the Subscription to violate the security of Kubos’s Technology, system or network or any other system or network, including, without limitation, unauthorized access (often known as “hacking”) to, monitoring of, probing, or interference with, computers or networks, distribution of Malware, interfering with services, such as denial of service attacks, load or stress testing, or other activities which are destructive of or intentionally place abnormal demands on the Kubos’s infrastructure. Customer may not through action or inaction permit others to use its systems for illegal activities or to violate the terms of this AUP.
  7. Enforcement of AUP. Kubos, in its sole discretion, will determine on a case¬by¬case basis reasonable action to be taken in response to violations of this AUP of which it becomes aware. Kubos reserves the right to suspend the provision of Subscription(s) or related services, or take other appropriate remedial action to address any violation or suspected violation of the AUP. Kubos will use reasonable efforts to notify Customer and provide an opportunity to cure before taking any such action, if practicable and if allowed by law. Customer will cooperate with Kubos in investigating complaints about potential violations and in taking any corrective action that Kubos deems necessary to correct an impermissible use of the Subscription by Customer or Customer’s Users. Customer will cooperate with Kubos in investigating complaints about potential violations and in taking any corrective action that Kubos deems necessary to correct an impermissible use of the Subscription by Customer or Customer’s end users. Corrective actions may include, but are not limited to: For Subscription Use.
    1. suspend access to part or all of the Subscription; and/or
    2. terminate the Agreement for breach.
  8. General Customer Compliance with Laws. Customer will comply in all material respects with all laws and regulations applicable to Customer in its use of the Kubos Technology. The parties acknowledge that Kubos is a “service provider” as defined in 17 USC § 512(k)(1), is subject to the Digital Millennium Copyright Act (“DMCA”) and has the duties of a service provider under the DMCA. Customer is solely responsible for ensuring that Customer Data and Customer content and its provision of same to Kubos complies at all times with all applicable laws and regulations.