This Master Software, Services, and Goods Agreement applies to software, services, and goods provided by Koble.
Last updated: 7/1/24
This Master Software, Services, and Goods Agreement (the "Master Agreement") applies to software, services, and goods provided by Koble Systems, Inc. d/b/a Koble, a Pennsylvania corporation, with offices located at 350 New Holland Ave, Lancaster, PA 17602 ("Koble").
Koble provides Software, Services, and Goods to its clients pursuant to written proposals describing the scope of Koble’s delivery and performance obligations, or other written ordering documents signed by the Parties. Once signed, such documents become a binding agreement between Koble and the customer identified on the signed document (“Customer”). A signed ordering document is referred to herein by the capitalized term “Order”. This Master Agreement, together with the Order, are hereafter referred to collectively as the “Agreement”.
Koble and Customer may be referred to herein collectively as the "Parties" or individually as a "Party."
This Agreement is effective as of the date the Order is last signed by a Party (the “Effective Date”).
Section A (“Terms Applicable to Software and Services”) applies to Software to be provided and Services to be performed pursuant to an Order. Section B (“Terms Applicable to Goods”) applies to Goods to be provided pursuant to an Order. Section C (“General Terms”) applies to the entire subject matter of the Agreement, except where the terms of Section C by their own language have a more limited application (for instance, Indemnification terms which reference only Software and terms related to Documentation which only relate to Software and Documentation).
Koble may make changes to this Master Agreement from time to time, which will be incorporated into the next Proposal executed between Customer and Koble. However, Koble may make unilateral changes to the terms of its Software License Terms (Section 1 of this Master Agreement) and/or Privacy Policy upon written notice to Customer via email and/or via notice on next login to the Software. Such changes will be binding upon Koble’s delivery of notice to Customer.
A. Terms Applicable to Software and Services
1. License
1.1 License Grant. Subject to and conditioned on Customer's payment of fees and compliance with all other terms and conditions of this Agreement, Koble hereby grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 21.8 (“Assignment”)) worldwide license to use the Software solely for the Permitted Use during the Term.
1.2 Scope of Licensed Access and Use. Koble may deliver the Software either via a local-install version or a cloud-hosted version. With respect to local-install versions of the Software, Customer may install, use, and run one copy of the Software on Customer’s server. With respect to either a cloud-hosted or local-install version of the Software, the total number of Authorized Users who may concurrently access and use the Software shall not exceed the total number of Authorized Users as set forth in the Order. With respect to the local-install version, Customer may make one copy of the Software solely for testing, disaster recovery, or archival purposes. Any copy of the Software made by Customer: (a) will remain the exclusive property of Koble; (b) will be subject to the terms and conditions of this Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original. Any additional licenses purchased by Customer from Koble shall be subject to the terms and conditions of this Agreement.
1.3 Open-Source Licenses. To the extent the Software includes any Open-Source Components, such Open-Source Components may be subject to separate open-source licenses (each, an "Open-Source License"). Any use of the Open-Source Components by Customer is governed by, and subject to, the terms and conditions of the Open-Source License(s).
1.4 Security Measures. The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Customer acknowledges and agrees that: (a) Koble may use these and other lawful measures to verify Customer's compliance with the terms of this Agreement and enforce Koble's rights, including all Intellectual Property Rights, in and to the Software; (b) Koble may deny any individual access to and/or use of the Software on written notice to Customer if Koble, in its reasonable discretion, believes that person's use of the Software would violate any provision of this Agreement, regardless of whether Customer designated that person as an Authorized User; and (c) Koble and its Representatives may collect, maintain, process and use diagnostic, technical, usage, and related information – including information about Customer's computers, systems and software – that Koble may gather periodically to improve the performance of the Software or develop Maintenance Releases. This information will be treated in accordance with Koble's privacy policy (the “Privacy Policy”), as amended from time to time, which can be viewed at: com or a successor website address.
2. License Restrictions
Except as this Agreement expressly permits, and subject to Section 1.3 with respect to Open-Source Components, Customer shall not, and shall not permit any other Person to:
-
- copy the Software, in whole or in part;
- modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party;
- reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part;
- bypass or breach any security device or protection used or contained in the Software or Documentation;
- remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation;
- use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other rights of any Person, or that violates any applicable Law;
- use the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using or providing a competing software product or service;
- use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or
- use (i) the Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement or (ii) any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open-Source License.
3. Delivery
If Customer does not already have a copy of the Software, Koble shall deliver one copy of the Software to Customer electronically – on tangible media or by other means – by a date specified in the Order (the date the Software is actually delivered is the “Delivery Date”).
4. Acceptance
4.1 If Customer does not already have a copy of the Software, Customer has ten (10) days after the Delivery Date to test whether the Software conforms in all material respects to the Acceptance Criteria. If Customer believes that the Software fails to conform in any material respect to the Acceptance Criteria, Customer must provide written notice to Koble detailing the non-compliance, and Koble will either correct the non-conformities or provide an acceptable workaround in a timely manner. If Customer does not send written notice within ten (10) days after the Delivery Date, the Software will be deemed accepted.
4.2 If Customer already has a copy of the Software, then the Software shall be deemed accepted as of the date the Order is executed by the Parties.'
5. Services and Maintenance Releases
5.1 Provision of Services. During the Term, Koble will provide the Services to Customer, as described in more detail in the Order, in accordance with the terms and conditions of this Agreement.
5.2 Remote Services.Customer acknowledges and agrees that Koble may provide Remote Services to Customer to assist in performing the Services. Customer agrees to provide Koble with access to Customer's network, system, and/or computers to install and use remote access software ("Remote Access Software") necessary for Koble to provide the Remote Services to Customer. The Remote Access Software contains technological measures designed to collect and transmit to Koble certain diagnostic, technical, usage and related information, including information about Customer's computers, systems, and network, relating to the Services. Customer acknowledges and agrees that: (i) Koble may collect, maintain, process and use this information in the course of performing the Services under this Agreement, provided that Koble shall only access, control and gather such information that it reasonably believes to be necessary to provide the Services; and (ii) all or portions of the Remote Access Software may remain on Customer's network, system, and/or computers after an incident is resolved.
5.3 Koble Obligations. In conducting the Services, Koble will:-
- before the date on which the Services are to start, obtain – and at all times during the Term of this Agreement maintain – all necessary licenses and consents, and comply with all relevant Laws applicable to the provision of the Services;
- prior to any Koble Personnel performing any Services hereunder on Customer’s premises, permit Customer to conduct – at Customer’s sole cost and expense – background checks or other types of employment screenings on such Koble Personnel. If Customer does not elect to exercise its rights under this paragraph prior to Koble commencing Services, the right shall be deemed waived;
- when performing work on Customer’s physical premises, comply with – and ensure that all Koble Personnel comply with – all rules, regulations and policies of Customer that are communicated to Koble in writing. Further, when Koble is not on Customer’s physical premises, but is accessing Customer’s systems remotely, Koble will comply with all Customer policies specifically relating to system security and remote access; and
- maintain complete and accurate records relating to the provision of the Services under this Agreement.
5.4 Koble Personnel. Koble is responsible for all Koble Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers' compensation insurance payments and disability benefits.
5.5 Subcontractors.Koble may, in its sole discretion, perform any of the Services by or through third parties (each, a “Subcontractor”) or any other Koble Personnel.
5.6 Maintenance Releases. During the Term, and so long as Customer is not in breach of the terms and conditions of this Agreement, Koble will provide Customer with all Maintenance Releases (including updated Documentation) that Koble makes generally available to its Software customers, at no additional charge. All Maintenance Releases provided by Koble to Customer are deemed Software. Customer will install all Maintenance Releases as soon as practicable after receipt. Customer does not have any right under or in connection with this Agreement to receive any New Product that Koble may, in its sole discretion, release from time to time.
5.7 Customer Obligations. With respect to the Services, Customer shall:
-
- cooperate with Koble in all matters relating to the Services;
- provide such access to Customer's premises and to such office accommodations and other facilities as may reasonably be requested by Koble for the purposes of performing the Services;
- respond promptly to any Koble request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Koble to perform Services in accordance with the requirements of this Agreement;
- provide such Customer Materials and information as Koble may reasonably request in order to carry out the Services in a timely manner, and ensure that such Customer Materials are complete and accurate in all material respects;
- ensure that all Customer Equipment is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal or industry standards or requirements;
- obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services, the installation of Koble Equipment, the use of Customer Materials and the use of Customer Equipment in relation to Koble Equipment – in all cases before the date on which the Services are to start; and
- keep, maintain and insure Koble Equipment in good condition and in accordance with Koble's instructions as notified in writing from time to time, and shall not dispose of or use Koble Equipment other than in accordance with Koble's written instructions or authorization.
5.8 Customer’s Acts Resulting in Delay. If Koble's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, Koble shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer – in each case, to the extent arising directly or indirectly from such prevention or delay.
5.9 Additional Products and/or Services. During the Term, Koble may provide Customer with additional products and/or services, whether or not specifically related to the installation, customization, modification, use and operation of the Software or other computer and software systems. Such additional products or services shall, unless otherwise specifically agreed to by the parties in writing, be subject to and governed by the terms and conditions of this Agreement.
6. Audits
6.1 Audit Procedure. Koble or its nominee (including its accountants and auditors) may, on twenty-four (24) hours' notice, inspect and audit Customer's use of the Software under this Agreement at any time during the Term. All audits will be conducted during regular business hours and in a manner that does not unreasonably interfere with Customer's business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Koble with respect to such audit. Koble shall only examine information directly related to Customer's use of the Software.
6.2 Cost and Results of Audit. If the audit determines that Customer's use of the Software exceeded the usage permitted by this Agreement, Customer shall pay to Koble all amounts due for such excess use of the Software, determined by applying a per-user/per-day price consistent with the price per user stated or implied on the Order. Customer shall also pay interest on such amounts, calculated pursuant to Section 17.4(a) (“Late Payment”). If the audit determines that such excess use exceeds Customer's permitted level of use, Customer shall also pay to Koble all reasonable costs incurred by Koble in conducting the audit. Customer shall make all payments required under this Section 8.2 within ten (10) days of the date of written notification of the audit results. If no excess usage is found, Koble shall reimburse Customer for any reasonable costs incurred by Customer in cooperating with the audit within ten (10) days of the date of written notification of the audit results.
7. Confidentiality
7.1 Confidential Information. In connection with this Agreement, each Party (the "Disclosing Party") may disclose or make available Confidential Information to the other Party (the "Receiving Party"). Subject to Section 7.2 (“Exclusions”), "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as "confidential." Without limiting the foregoing, the Software and Documentation are the Confidential Information of Koble.
7.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) that was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the entirety of the Term and for five (5) years following the termination of this Agreement:-
- not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
- except as may be permitted under the terms and conditions of Section 7.5 (“Compelled Disclosures”), not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 7; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7;
- safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information – and in no event using less than a reasonable degree of care;
- promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
- ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 7.
7.4 Trade-Secrets. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 7 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time that such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws (other than as a result of any act or omission of the Receiving Party or any of its Representatives).
7.5 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3 (“Protection of Confidential Information”); and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party's request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
8. Intellectual Property Rights
8.1 Intellectual Property Ownership. Customer acknowledges and agrees that:-
- the Software and Documentation are licensed, not sold, to Customer by Koble and that Customer does not have any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights;
- Koble is the sole and exclusive owner of all right, title and interest in and to the Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open-Source Components and the limited license granted to Customer under this Agreement; and
- Customer hereby unconditionally and irrevocably assigns to Koble its entire right, title and interest in and to any Intellectual Property Rights that Customer may now or hereafter have in or relating to the Software or Documentation (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.
- If Koble provides Customer with any Deliverables, Customer shall own the copy of such Deliverables provided by Koble, but Koble shall retain unrestricted ownership of the originals (except that Koble shall not be permitted to use such original in any manner that would identify Customer to third parties).
-
- take all commercially reasonable measures to safeguard the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access;
- at Koble's expense, take all such steps as Koble may reasonably require to assist Koble in maintaining the validity, enforceability, and Koble's ownership of the Intellectual Property Rights in the Software and Documentation;
- promptly notify Koble in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Koble's Intellectual Property Rights in or relating to the Software or Documentation; or (ii) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and
- fully cooperate with and assist Koble in all reasonable ways in the conduct of any Action by Koble to prevent or abate any actual or threatened infringement, misappropriation or violation of Koble's rights in, and to attempt to resolve any Actions relating to, the Software or Documentation – including having Customer's employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.
9. Representations and Warranties
9.1 Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that:-
- it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
- it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses and authorizations it grants and is required to grant under this Agreement;
- the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
- when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
9.2 Limited Warranty. Subject to the limitations and conditions set forth in Section 9.3 (“Customer Requirements”) and Section 9.4 (“Exceptions”), Koble warrants to Customer that, for a period of ninety (90) calendar days from the Effective Date (the "Software Warranty Period"), the Software will substantially conform in all material respects to the specifications in the Documentation when installed, operated, and used as recommended in the Documentation and in accordance with this Agreement.
9.3 Customer Requirements. The limited warranties set forth in Section 9.2 (“Limited Warranty”) apply only if Customer: (a) notifies Koble in writing of any warranty breach before the expiration of the Software Warranty Period; (b) has promptly installed all Maintenance Releases to the Software that Koble previously made available to Customer; and (c) as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all license fees then due and owing).
9.4 Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 9.2 does not apply to problems arising out of or relating to:-
- Software, or the media on which it is provided, that is modified or damaged by Customer or its Representatives;
- any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer's use in the Documentation;
- Customer's or any third party's negligence, abuse, misapplication or misuse of the Software, including any use of the Software other than as specified in the Documentation;
- Customer's failure to promptly install all Maintenance Releases that Koble has previously made available to Customer;
- the operation of, or access to, Customer's or a third party's system or network;
- any beta software, software that Koble makes available for testing or demonstration purposes, temporary software modules or software for which Koble does not receive a license fee;
- Customer's breach of any provision of this Agreement; or
- any other circumstances or causes outside of the reasonable control of Koble (including abnormal physical or electrical stress).
-
- replace any damaged or defective media on which Koble supplied the Software;
- amend, supplement or replace any incomplete or inaccurate Documentation;
- repair the Software; and/or
- replace the Software with functionally equivalent software (which software will, on its replacement of the Software, constitute “Software” hereunder).
The remedies set forth in this Section 9.5 are Customer's sole remedies, and Koble's sole liability, under the limited warranty set forth in Section 9.2.
9.6 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.2, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS, DELIVERABLES, AND SERVICES PROVIDED BY KOBLE ARE PROVIDED "AS IS." KOBLE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, KOBLE MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, SERVICES, DELIVERABLES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
B. Terms Applicable to Goods
10. Delivery
10.1 Delivery Timeline. The Goods will be delivered within a reasonable time after the execution of the Order, subject to availability of finished Goods. Koble shall not be liable for any delays, loss, or damage in transit.
10.2 Delivery Point. Unless otherwise agreed in writing by the parties, the Goods shall be shipped to Customer’s place of business (the "Delivery Point") using Koble's standard methods for packaging and shipping such Goods. Customer shall be responsible for all costs of shipping and unloading the Goods, and shall provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
10.3 Partial Shipment. Koble may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Customer's purchase order.
10.4 Delivery Failure Due to Customer Fault. If for any reason Customer fails to accept delivery of any of the Goods, or if any of the Goods cannot be delivered at the Delivery Point because Customer has not provided appropriate instructions, documents, licenses, or authorizations: (i) the Goods shall be deemed to have been delivered; and (ii) Koble, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
11. Non-Delivery
11.1 Evidence of Quantity Received. The quantity of any installment of Goods as recorded by Koble on dispatch from Koble's place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving a different quantity was received.
11.2 Requirement of Customer Notice. Koble shall not be liable for any non-delivery of Goods (even if caused by Koble's negligence) unless Customer gives written notice to Koble of the non-delivery within five (5) Business Days of the date when the Goods would in the ordinary course of events have been rec
11.3 Limitation of Liability for Non-Delivery. Any liability of Koble for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.12. Shipping Terms; Risk of Loss
Unless otherwise specifically stated on a document of sale furnished by Koble or agreed to in writing and signed by Koble, delivery shall occur, and risk of loss shall pass to Customer, upon delivery of the Goods to a carrier at the point of shipment. Transportation shall be at Customer’s sole risk and expense, and any claim for loss or damage in transit shall be against the carrier only.
13. Title/Security Interest
As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Koble a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Commonwealth of Pennsylvania’s Uniform Commercial Code.
14. Inspection and Rejection of Nonconforming Goods
14.1 Inspection Period. Customer shall inspect the Goods within five (5) Business Days of receipt ("Inspection Period"). Customer will be deemed to have accepted the Goods unless it provides notice to Koble during the Inspection Period and furnishes such written evidence or other documentation as required by Koble. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Customer's purchase order; (ii) product's label or packaging incorrectly identifies its contents; or (iii) product does not function according to its intended use.14.2 Cure for Nonconforming Goods. If Customer timely notifies Koble of any Nonconforming Goods, Koble shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the Nonconforming Goods to Koble's address as provided by Koble. If Koble exercises its option to replace Nonconforming Goods, Koble shall, after receiving Customer's shipment of Nonconforming Goods, ship to Customer, at Customer's expense and risk of loss, the replaced Goods to the Delivery Point.
14.3 Exclusive Remedy. Customer acknowledges and agrees that the remedies set forth in Section 14.2 (“Cure for Nonconforming Goods”) are Customer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 14.2, all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Koble.
15. Limited Warranty
15.1 Warranty. Koble warrants to Customer that for a period of ninety (90) calendar days from the date of shipment of the Goods ("Goods Warranty Period"), that such Goods will materially conform to the specifications set forth in Koble's published specifications in effect as of the date of shipment and will be free from material defects in material and workmanship.
15.2 LIMITATION OF WARRANTY. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 15.1 (“WARRANTY”), KOBLE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING MAKING NO (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
15.3 Third Party Products. Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 15.1. For the avoidance of doubt, KOBLE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.15.4 Customer Requirements. Koble shall not be liable for a breach of the warranty set forth in Section 15.1 unless: (i) Customer gives written notice of the defect, reasonably described, to Koble within ten (10) days of the time when Customer discovers or ought to have discovered the defect; (ii) Koble is given a reasonable opportunity after receiving the notice to examine such Goods and Customer (if requested to do so by Koble) returns such Goods to Koble's place of business at Koble's cost for the examination to take place there; and (iii) Koble reasonably verifies Customer's claim that the Goods are defective.
15.5 Exclusions. Koble shall not be liable for a breach of the warranty set forth in Section 15.1 if: (i) Customer makes any further use of such Goods after giving such notice; (ii) the defect arises because Customer failed to follow Koble's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Customer alters or repairs such Goods without the prior written consent of Koble.
15.6 Cure for Breach of Warranty. Subject to Section 15.4 (“Customer Requirements”) and Section 15.5 (“Exclusions”) above, with respect to any such Goods during the Goods Warranty Period, Koble shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Koble so requests, Customer shall, at Koble's expense, return such Goods to Koble.
15.7 EXCLUSIVITY OF REMEDY. THE REMEDIES SET FORTH IN SECTION 15.6 (“CURE FOR BREACH OF WARRANTY”) SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND KOBLE'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 15.1.
C. General Terms
16. Term and Termination
16.1 Unless a different term is specified in an Order, the initial term of this Agreement commences as of the Effective Date and continues in effect until twelve (12) months from such date unless terminated earlier pursuant to any of the Agreement's express provisions (the "Initial Term").
16.2 Renewal Term. This Agreement will automatically renew for an unlimited number of additional successive twelve (12) month terms unless earlier terminated pursuant to any of the Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively together with the Initial Term, the "Term").
16.3 Scope of Renewal. For clarity, renewal of this Agreement under this section results in the renewal of all Software subscriptions and ongoing Services (including the fees therefor as may be increased by Koble under Section 17.1 (“License and Service Fees”)), but does not include an automatic repurchase of implementation Services or any Goods.
16.4 Termination. This Agreement may be terminated at any time:
-
- by Koble, effective on written notice to Customer, if Customer fails to pay any amount when due under this Agreement, where such failure continues more than ten (10) days after Koble's delivery of written notice thereof ("Payment Failure");
- by Koble, immediately on written notice to Customer if any three (3) or more Payment Failures occur in any twelve (12) month period;
- by either Party, effective on written notice to the other Party, if the other Party breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach;
- by Koble, effective immediately, if Customer: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
-
- On the expiration or earlier termination of this Agreement (the date of such expiration of termination being the “Termination Date”):
- if Customer is using the Software under a perpetual license Order, Customer may retain their Software license and continue using the software into perpetuity subject to the license terms in this Agreement, with the understanding that Koble makes no commitment to continue support of the Software into perpetuity. Koble may at its discretion create a New Product and discontinue development and support of the Software. Until such time as Koble discontinues to support the Software, support services may be available from Koble, and are subject to the rates and terms and conditions in place at the time a request is made for support services. Notwithstanding the foregoing, if this Agreement is terminated due to Customer’s breach of license, Customer’s license shall also be revoked;
- if Customer has a local-install version of the Software, Customer will have a perpetual license to access the Software in read-only format, solely for the purpose of accessing Customer’s own data. For clarity, Customer’s read-only version of the software will not receive any further updates or technical support following the Termination Date;
- if Customer is using the Software under a non-perpetual license, all rights, licenses, and authorizations granted to Customer hereunder will immediately terminate and Customer will (A) immediately cease all use of and other activities with respect to the Software and Documentation; (B) within thirty (30) days deliver to Koble, or – at Koble's written request – destroy and permanently erase from all devices and systems by which Customer directly or indirectly controls the Software: the Software, the Documentation, and Koble's Confidential Information – including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to Koble in a signed written instrument that it has complied with the requirements of this Section 16.5(a)(iii). Notwithstanding the foregoing, if Customer is using a local-install version of the Software, Customer is permitted to retain a read-only version of the Software solely to allow Customer to access Customer’s data existing within the Software as of the Termination Date, but for no other purpose whatsoever;
- If Customer is using a cloud-based version of the Software, within 90 days of the Termination Date, Customer may request a copy of Customer’s data to be provided by Koble, which Koble shall make available to Customer in CSV or similar format. Koble shall not be required to retain Customer’s data longer than 90 days after the Termination Date;
- All amounts payable by Customer to Koble of any kind under this Agreement are immediately due and payable no later than ten (10) Business Days;
- Customer will be subject to reinstatement fees if and when Customer wishes to reinstate the software and/or related subscription services after expiration or termination of this Agreement. Reinstatement fees will be based on Koble’s policy in place at the time of reinstatement, but generally requires Customer to repurchase the software under a new Order. Koble may change its reinstatement policy and related fees at its sole discretion without prior notice;
- Koble will not be required to make further deliveries of Goods, and is entitled to receive prompt payment for any Goods which have already been delivered but which have not yet been paid for.
- On the expiration or earlier termination of this Agreement (the date of such expiration of termination being the “Termination Date”):
17. Fees and Payment
17.1 License and Service Fees. Customer shall pay Koble the fees set forth in the Order in accordance with the Order and the terms of this Section 17. Koble shall have the right at its discretion to increase any annual license and service fees for the next Renewal Term.
17.2 Taxes. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Koble's income.
17.3 Payment. Customer shall pay all amounts due and owing under this Agreement within fifteen (15) days after the date of Koble's invoice therefor, unless different terms are mutually agreed upon in advance. Payment shall be sent to the address or account specified in the Order or such other address or account as Koble may specify in writing from time to time. Customer shall make all payments hereunder in US dollars as follows:
-
- Invoices for Recurring Subscription or Services:
- If paid annually in advance, payments for recurring subscription or services shall be made by check, ACH, or wire transfer.
- If not paid annually in advance, Koble must enroll in automatic payments and provide Koble with valid payment information and keep valid payment information on file during the term of this Agreement. Automatic payments shall be initiated by Koble and shall be made by debit card, credit card or ACH. Automatic payments will be charged to Customer’s specified payment method on or soon after the invoice due date.
- Other Invoices. Other invoices shall be paid by check, ACH, wire transfer, debit card, or credit card, and Koble shall have the right to specify a particular payment method with respect to any invoice.
- Invoices for Recurring Subscription or Services:
-
- Koble may charge interest on the past due amount at the rate of 2% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
- Customer shall reimburse Koble for all reasonable costs incurred by Koble in collecting any late payment of amounts due or related interest, including attorneys' fees, court costs, and collection agency fees; and
- if such failure continues for ten (10) days following written notice thereof, Koble may:
- With respect to delivery of Software (i) disable Customer's use of the Software (including by means of a disabling code, technology, or device); (ii) withhold, suspend, or revoke its grant of a license hereunder; and/or (iii) terminate this Agreement under Section 16.4(a) or (b) (“Termination”), as applicable.
- With respect to delivery of Goods and provision of Services (i) suspend delivery and/or performance of Goods and/or Services; and/or (ii) terminate this Agreement under Section16.4(a) or (b), as applicable.
18. Indemnification
18.1 Koble Indemnification. Koble shall indemnify, defend, and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors and permitted assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by a Customer Indemnitee resulting from any Action by a third party caused by the gross negligence or willful misconduct of Koble or its Representatives or that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party's US Intellectual Property Rights/US patents, copyrights, or trade secrets. This Section 18.1 does not apply to the extent that the alleged infringement arises from:
-
- Third-Party Materials;
- combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Koble or specified for Customer's use in the Documentation, unless otherwise expressly permitted by Koble in writing;
- modification of the Software other than: (i) by Koble or its contractor in connection with this Agreement; or (ii) with Koble's express written authorization and in strict accordance with Koble's written directions and specifications;
- use of any version of the Software other than the most current version or failure to timely implement any Maintenance Release, modification, update or replacement of the Software made available to Customer by Koble;
- use of the Software after Koble's notice to Customer of such activity's alleged or actual infringement, misappropriation or other violation of a third party's rights;
- negligence, abuse, misapplication, or misuse of the Software or Documentation by or on behalf of Customer, Customer's Representatives, or a third party;
- use of the Software or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Koble's instructions;
- events or circumstances outside of Koble's commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or
- Third-Party Claims or Losses for which Customer is obligated to indemnify Koble pursuant to Section 18.2 (“Customer Indemnification”).
-
- based on an allegation that any Intellectual Property Rights or other rights of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
- use or combination of the Software by or on behalf of Customer or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Koble nor authorized by Koble in this Agreement and the Documentation; and
- information, materials, or technology directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation;
- relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant, or obligation under this Agreement;
- relating to gross negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer or any of its Representatives with respect to the Software, Documentation, or Goods or otherwise in connection with this Agreement; or
- relating to use of the Software, Documentation, or Goods by or on behalf of Customer or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to Koble's instructions.
- based on an allegation that any Intellectual Property Rights or other rights of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any:
18.4 Mitigation. If the Software, or any part of the Software, is, or in Koble's opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's use of the Software is enjoined or threatened to be enjoined, Koble may, at its option and sole cost and expense:
-
- obtain the right for Customer to continue to use the Software as contemplated by this Agreement;
- modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Software under this Agreement; or
- if, after Koble's exercise of commercially reasonable efforts, none of the remedies set forth in the above subsection (a) or (b) is reasonably available to Koble, terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Customer, in which event:
- Customer shall cease all use of the Software and Documentation immediately on receipt of Customer's notice; and
- provided that Customer fully complies with its post-termination obligations set forth in Section 16.5 (“Effect of Termination or Expiration”), Koble shall promptly refund to Customer, on a pro rata basis, the share of any license fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.
19. Limitations of Liability
19.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL KOBLE, OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
19.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF KOBLE ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO KOBLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
20. Terms Applicable to Payment-Facilitation Services
If you have purchased payment-facilitation services through Koble, you will be required to agree to terms with Koble's third party payment-facilitation partner ("Payment Facilitator"). You agree that Koble has no liability related to payment-facilitation services with respect to either the performance and quality of the services themselves, or with respect to transaction data transferred to and from the Payment Facilitator and other parties involved in payment processing. As between Koble and Payment Facilitator, you will look solely to Payment Facilitator under the terms of your agreement with them for satisfaction of any claims related to payment-processing services. Further, you agree that Koble may provide the following datapoints to the Payment Facilitator or other parties involved in processing payments you receive with respect to any transaction the Payment Facilitator facilitates on your behalf:
- Sales tax amount
- Order number
- Item description
- Commodity code
- Product code
- Item price
- Item discount
- Quantity
- Unit of measure
- Item total
- Shipping amount
- Duty amount
- Order discount
- Tax
21. Miscellaneous
21.1 Further Assurances. On a Party's reasonable request the other Party shall, at the requesting Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
21.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
21.3 Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party (which consent shall not be unreasonably delayed or withheld).
21.4 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communication under this Agreement shall have legal effect only if in writing and addressed to a Party at the address first set forth above (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 21.4). Notices sent in accordance with this Section 21.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile, with confirmation of transmission, if sent during the addressee's normal business hours, and on the next Business Day, if sent after the addressee's normal business hours; and (d) on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
21.5 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting either gender include both genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
21.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
21.7 Entire Agreement. This Agreement, together with the Order and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Order, related exhibits, schedules, attachments, and appendices and any other documents incorporated herein by reference. If any terms in the Order conflict with any terms or conditions in this Agreement, the terms in this Agreement shall govern, unless otherwise expressly stated in the Order. Further, the terms of the Agreement prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
21.8 Assignment. Customer may not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement (in each case whether voluntarily, involuntarily, by operation of law, or otherwise) without Koble's prior written consent. Koble may assign this Agreement to a successor in interest to Koble’s rights and obligations without Customer’s consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 21.8 is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
21.9 Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Customer will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
21.10 Force Majeure.
-
- No Breach or Default. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control (a "Force Majeure Event"), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown. A Party may terminate this Agreement if a Force Majeure Event materially impacting its ability to perform its obligations continues substantially uninterrupted for a period of sixty (60) days or more.
- Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
21.12 Amendment and Modification; Waiver. Except as otherwise specifically stated in the Agreement, no amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
21.13 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
21.14 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. For any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder, the Parties agree that the jurisdiction and venue shall lie only in the Court of Common Pleas of Lancaster County or the Federal District Court for the Eastern District of Pennsylvania and each of the Parties hereby irrevocably consents and submits to the jurisdiction of such courts. The Parties irrevocably waive any objection which the Parties may now or hereinafter have to the laying of the venue of any suit, action or proceeding brought in such court and any claim that such suit, action or proceeding brought in such a court has been brought in an inconvenient forum.
21.15 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
21.16 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 1 (“License”), Section 8 (“Intellectual Property Rights”), Section 9 (“Confidentiality”), Section 17 (“Fees and Payment”), or Section 18 (“Indemnification”) of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
21.17 Attorneys' Fees. Customer will reimburse Koble for any and all costs incurred by Koble to enforce this Agreement, including but not limited to attorneys’ fees, court costs, expenses, and collection costs.
21.18 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
22. Definitions
"Acceptance Criteria" means any Documentation provided by Koble to Customer, as well as any other requirements set forth in this Agreement.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person. “Control" means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50% of the voting securities of a Person.
"Authorized User" means each of the individual users of Customer and/or its affiliates authorized by Customer to use the Software.
"Business Day" means a day other than a Saturday, Sunday, or other day on which commercial banks in Harrisburg, Pennsylvania are authorized or required by Law to be closed for business.
"Customer" has the meaning set forth in the preamble.
“Customer Equipment” means any equipment, systems, or facilities provided by Customer and used directly or indirectly in the provision of the Services.
“Customer Materials” means any documents, data, know-how, methodologies, software, or other materials provided to Koble by Customer, including computer programs, reports and specifications.
"Deliverables" means all documents, work product, and other materials that are delivered to Customer hereunder or prepared by or on behalf of Koble in the course of performing the Services.
"Documentation" means any materials relating to the Software published on Koble’s “EBMS Main Documentation” page (or successor page) on Koble’s website. Such materials may be updated at any time without notice to Customer. As of the time the Master Agreement terms were last updated, Koble’s Documentation was published at: https://koblesystems.com/knowledge/ebms-main-documentation. “Documentation” also includes any supplemental materials specifically included in, or incorporated by reference into, the Agreement.
“Goods” means any physical goods provided to Customer under the Agreement.
"Intellectual Property Rights" means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
"Koble Equipment" means any equipment, systems or facilities provided by or on behalf of Koble and used directly or indirectly in the provision of the Services.
“Koble Personnel" means all employees and subcontractors, if any, engaged by Koble to perform the Services.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Loss" or "Losses" means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Maintenance Release" means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that Koble may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Product.
"New Product" means any new version of the Software that Koble may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Koble's designation of a new version number or product name), and which Koble may make available to Customer at an additional cost under a separate written agreement.
"Open-Source Components" means any software component that is subject to any open-source license agreement, including (but not limited to) any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
"Permitted Use" means use of the Software by an Authorized User for the benefit of Customer in the ordinary course of its internal business operations.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Remote Services" means the delivery of Services remotely over the internet through the use of Remote Access Software that Koble installs on Customer’s network, systems, and/or computers.
"Representatives" means, with respect to a Party, that Party's employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Services” mean the software and technology support services related to Software to be provided pursuant to the Order, as well as any other professional services specified in an Order including, without limitation, business consulting services, change-management services, and other services not necessarily related to Software.
"Software" means collectively, the computer software identified on the Order and all components thereof, including without limitation, all updates, modifications, enhancements, customizations integrated web pages and/or websites built by Koble, integrated mobile applications built by Koble, and other derivative works thereto, and all Documentation relating to the Software or the use thereof provided by Koble to Customer in accordance with this Agreement.
"Third-Party Materials" means materials and information, in any form or medium, that are not proprietary to Koble, including any third-party: (a) documents, data, content or specifications; (b) Open-Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.