Customer License Agreement

LAST REVISION: August 19, 2015

BEFORE YOU USE OR DOWNLOAD KOCOMOJO, LLC’S (“KOCOMOJO”) “SDK” (AS DEFINED BELOW), “API” (AS DEFINED BELOW), THE “WEB APPLICATION” (AS DEFINED BELOW) OR OTHER LOCATION-BASED INTEGRATION TECHNOLOGY AND SOLUTIONS SERVICES (COLLECTIVELY, THE “PRODUCTS”), CAREFULLY READ THE TERMS OF THIS LICENSE AGREEMENT (“AGREEMENT”). BY CLICKING THE “I AGREE” BUTTON INDICATING YOUR ACCEPTANCE, OR BY DOWNLOADING OR USING KOCOMOJO’S PRODUCTS, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.  YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOURSELF AND/OR ANY ENTITY THAT YOU REPRESENT AND ITS AFFILIATES AND/OR OTHER LEGAL ENTITIES ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (“YOU” OR “YOUR”), TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND SHOULD CLICK THE “CANCEL” BUTTON, AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE.

 

1. Definitions.

The following definitions apply herein:

 

1.1 “Documentation” means any written materials provided to You by Kocomojo relating to the “Software” (as defined below) or any information or materials made available by Kocomojo online related to the Software.

 

1.2 “Enhancements” means any modification or addition to the Software that materially changes its utility, efficiency, function capability or application, but that does not solely consist of an “Error Correction” (as defined below). Kocomojo may designate Enhancements as minor or major.

 

1.3 “Software” means one or more of the following, the Software Development Kit (“SDK”), the Application Programming Interface (“API”) and the web application (“Web Application”), together with any Updates or Enhancements thereto.

 

1.4 “Updates” means any new version of the Software, which may include Error Corrections, Enhancements or both, issued by Kocomojo from time to time to You.

 

2. License.

2.1 In order to use the Products, You are required to select either the Basic, Plus or Premium subscription plan (each, a “Subscription Plan”) and create an account with KocoConnect to provide a method of secure encrypted payment, which will require You to provide Your name, credit card information (including card number, expiration date and security code), billing address (street address, city, state and ZIP code) and phone number. Subject to Your compliance with the terms and conditions of this Agreement, Kocomojo grants You (i) if you are a developer, a limited, non-exclusive, non-transferable, non-sublicensable license to install, execute, display and otherwise use the Software that You are about to download along with any Documentation that accompanies it solely for the internal purposes of developing applications that are interoperable with the Products; and (ii) if You are a brand, a limited, non-exclusive, non-transferable, non-sublicensable license to install, execute, display and otherwise use the Software that You are about to download along with any Documentation that accompanies it solely for the purpose of advertising in connection with and/or powered by the Products. The license also includes the right for You to make the number of copies of the Software reasonably required for authorized use under this Agreement, provided that You maintain on all such copies all proprietary rights notices of the Software. The license further includes the right for You to view and use the sample code and the public video featuring the use of sample code that can be integrated or incorporated into a custom application using the Software; provided that You shall not distribute, publish, use publicly or otherwise commercially exploit such sample code or video. You shall not permit any affiliated entities or third parties to use, distribute, directly access, copy, download or install the Software for their own use unless as otherwise set forth in this Agreement. You hereby accept the grant of such license and agree to be bound by all conditions of this Agreement. The Software provided pursuant to this Agreement is NOT custom software specifically designed for You or to meet any of Your specific systems, applications or user functions. Kocomojo makes no representation to You that the Software will interface or otherwise function with Your operating system or any third party systems or software utilized by You.

 

2.2 You hereby grant to Kocomojo a royalty-free, fully paid-up, sub-licensable, transferrable, nonexclusive, worldwide, irrevocable and perpetual license to reproduce, display, distribute and otherwise use the trademarks, service marks, logos or other indicia of origin associated with You solely for the purpose of indicating that You are Kocomojo’s client and promoting You in Kocomojo’s advertising, marketing or promotional materials.

 

2.3 Except for the terms of the license set forth herein, Kocomojo retains all right, title and interest in and to the Software, Documentation and Products, and all intellectual property rights therein. You are not authorized to alter, modify, copy, edit, format, create derivative works of or otherwise use any materials, content or technology provided under this license except as explicitly provided in this license or approved in advance in writing by Kocomojo.

 

2.4 Your posting of any content on or within the Service shall be subject to the terms of Company’s Copyright Policy.

 

3. Proprietary Rights.

You acknowledge and agree that the Software and Products contain proprietary and trade secret information of Kocomojo. Other than the limited license granted to You under Section 2 of this Agreement, Kocomojo retains all ownership and proprietary rights in and to the Software and Products, including any and all copies made by You and any and all Updates or Enhancements. You will have no right and will not, nor will You authorize or assist others to: (a) copy the Documentation; or (b) disassemble, reverse engineer, modify, translate, alter, decompile or create derivative works of all or any portion of the Software or the Products or otherwise discern the source code of the Software or the Products except and solely to the extent permitted under applicable law notwithstanding this restriction; or (c) use the Software to create any feature or service that is competitive with Kocomojo’s Products; or (d) use the Software on a service bureau or time sharing basis or to provide services to third parties; or (e) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Software or Products or any of Your rights therein, except such copying and transfer as expressly permitted in this Agreement; or (f) use the Software for performing testing or other comparative activities (or publish any such results); or (g) use the Software for any commercial purpose.

 

4. Payment and Refund Policy.

You agree to pay a subscription license fee in U.S. dollars for use of the Products in accordance with the Subscription Plan You selected when You created an account (“License Fee”) upon the conclusion of the trial period provided to new users of the Products, and monthly thereafter. Any charges for additional functionality or features used in connection with Your use of the Subscription Plan will be billed to Your account on a monthly basis. The amount and payment terms for such License Fee are as disclosed to You within the Web Application or as provided by a Kocomojo representative who You may call or who may contact You regarding a custom license agreement in connection with Your use of the Products. You may be prompted from time to time with offers to upgrade Your Subscription Plan for an additional License Fee, which such offers may be sent by Kocomojo through the dashboard, direct messages or other means of communication via the Web Application or via contact information you have provided to Kocomojo. If Kocomojo in its sole discretion chooses to establish fees and payment terms for the use of any upgraded or additional aspects of the Products, Kocomojo will provide notice of such terms as provided in Section 15 below, and You may elect to stop using the Products rather than incurring fees. If You continue to use the Products following such notice, You shall pay a separate License Fee in U.S. dollars. All License Fees shall be exclusive of any and all taxes, and You are responsible for payment of such taxes (excluding those based on Kocomojo’s net income). You agree to hold harmless Kocomojo from all claims and liability arising from Your failure to report or pay such taxes. Any unpaid portion of any License Fee, or other fee, payable by You to Kocomojo under this Agreement, as of the date of expiration or termination for any reason, shall be immediately due and payable. Past due amounts shall be subject to a monthly service charge of three and one-half percent (3.5%) per month of the unpaid balance or the maximum rate allowable by law. To the fullest extent permitted by law, You waive all claims relating to License Fees unless such claims are made within thirty (30) days after the applicable License Fees are charged (this does not affect any of Your rights with and/or respecting Your credit card issuer). Refunds (if any) are at the discretion of Kocomojo and will only be in the form of credit for the Products. Nothing in this Agreement obligates Kocomojo to extend credit to any party.

 

5. User Data.

You agree that the Software and Products will enable You to share and receive information about Your employees, end users and/or customers with and from Kocomojo, which may include geolocation and other personally identifiable information. As a condition of Your use of the Software and Products, You must obtain express consent to collect and share such employee, end user or customer information with Kocomojo by specifically including language in Your privacy policy requiring employees, users and/or customers to accept the terms of Kocomojo’s Privacy Policy and allowing for the collection and transmittal of such information to Kocomojo. Kocomojo’s use of any information You provide via the Products shall be governed by the Privacy Policy available at www.kocomojo.com/privacy, the terms and conditions of which you hereby accept. You acknowledge and agree that You are solely responsible for the accuracy and content of such information.

 

6. Support Services; Hardware.

6.1 This Agreement does not include support, or any configuration or customization of the Software or Products to Your system and specifications or any other services. If You desire support and maintenance, such services shall be governed by a separate Support Services Agreement with Kocomojo. If You desire any additional services with respect to the Software or Products, such services shall be governed by a separate Service Agreement with Kocomojo.

 

6.2 The Products are designed to interact with Apple iBeacons and/or other similar hardware involving location services technology (“Hardware”). Kocomojo does not provide any Hardware or hardware configuration, installation or other services related thereto under this Agreement. To the extent You wish to obtain Hardware or any related services through Kocomojo, and Kocomojo agrees, such products and services shall be governed by a separate Hardware Agreement. In any event, Your use of any Hardware (whether provided by Kocomojo for testing purposes or obtained independently by You) in conjunction with the Products shall be governed by this Agreement.

 

7. Limited Warranties; Disclaimer of Warranties.

7.1 Kocomojo warrants that the Software and Products will perform substantially in accordance with the Documentation. Your sole and exclusive remedy for breach of this warranty shall be to notify Kocomojo, detailing the nonconformance, and to provide Kocomojo with a reasonable opportunity to correct or replace the defective Software. If Kocomojo fails to remedy such breach within a reasonable time period after receipt of Your notice, You shall be entitled to terminate this Agreement. This limited warranty shall be void if Kocomojo determines that the Software or Products have been used other than in accordance with the Documentation, abused, modified, altered or otherwise subjected to damage from accident or acts of nature. You agree to comply with Kocomojo’s reasonable instructions with respect to the alleged defective Software or Products.

 

7.2 EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1.1, THE SOFTWARE AND PRODUCTS ARE PROVIDED BY KOCOMOJO TO YOU “AS IS,” AND KOCOMOJO MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND PRODUCTS AND SPECIFICALLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW. KOCOMOJO DOES NOT WARRANT THAT THE SOFTWARE AND PRODUCTS WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE. YOU WILL BEAR ALL RISKS RELATING TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND PRODUCTS, AND ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.

 

7.3 You are solely responsible for proper configuration of all hardware and other equipment and all databases and other software used with the Software or Products.

 

8. Indemnity.

8.1 You agree to defend, indemnify and hold Kocomojo, its directors, officers, employees, agents and affiliates harmless from any and all claims, lawsuits, demands, settlements, judgments, liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees (collectively, “Claims”), in any way arising from, related to or in connection with Your use of the Software or the Products, Your violation of any representation, warranty, covenant or obligation under this Agreement or the posting or transmission of any content, information, data or other materials on or through the Products by You, including, but not limited to, any third party claim that any information or materials You provide infringe or violate any copyright, patent, trademark, trade secret, right of publicity or privacy or any other third party proprietary right.

 

8.2 Kocomojo will have no obligation to You for any Claim that arises from: (a) any modification to the Software or Products by anyone other than Kocomojo; (b) modifications made by Kocomojo at Your request; (c) use of the Software or Products other than as specified in this Agreement or in the applicable Documentation; (d) use of prior versions of the Software or Products after an Update has been provided by Kocomojo to You; or (e) use of the Software or Products in combination with third-party software, hardware or data.

 

8.3 If a Claim arises, or in Kocomojo’s opinion is likely to arise, Kocomojo may at its own expense obtain for You the right to continue using the Software or Products, modify the Software or Products to make any of them non-infringing, or substitute other software or products of similar capability and functionality. If none of these options are reasonably available to Kocomojo, Kocomojo may terminate this Agreement. THIS SECTION 8 STATES THE ENTIRE OBLIGATION OF KOCOMOJO AND THE EXCLUSIVE REMEDIES TO YOU WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS.

 

9. Limitation of Liability.

IN NO EVENT SHALL KOCOMOJO BE LIABLE TO YOU FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR BE LIABLE TO ANY THIRD PARTY FOR ANY DAMAGES WHATSOEVER, EVEN IF KOCOMOJO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Kocomojo’s entire liability under this Agreement for any damages from any cause whatsoever, regardless of form or action, whether in contract, negligence or otherwise, shall in no event exceed an amount equal to $100.

 

10. Confidential Information.

Kocomojo and You agree to keep confidential and to use only for purposes of performing or as otherwise permitted under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential or which would reasonably be considered of a confidential nature (“Confidential Information”). The obligation of confidentiality shall not apply to information which is publicly available through authorized disclosure, is known by the receiving party at the time of disclosure as evidenced in writing or is rightfully obtained from a third party who has the right to disclose it or which is required by law, government order or request to be disclosed; provided that the disclosing party will give prompt written notice to the non-disclosing party of such order in order to permit the non-disclosing party to seek confidential treatment of such information, and provided that the disclosing party will only furnish that portion of the Confidential Information it is required to disclose. Notwithstanding any of the foregoing, You acknowledge and agree that the Software and Products shall be deemed to constitute Confidential Information of Kocomojo. Kocomojo and You agree to maintain all Confidential Information of the other party in confidence to the same extent that each of Kocomojo and You protects its own similar Confidential Information. Kocomojo and You agree to take reasonable precautions to prevent any unauthorized disclosure or use of Confidential Information of the other party, including, without limitation, by disclosing such Confidential Information only to its employees or agents (a) with a need to know such information, (b) who are parties to appropriate agreements or confidentiality obligations sufficient to comply with this Section, and (c) who are informed of the nondisclosure/non-use obligations imposed by this Section, and the receiving party will take appropriate steps to implement and enforce such non-disclosure/non-use obligations. Upon any termination of this Agreement, each party shall return to the other party all Confidential Information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement.

 

11. Term and Termination.

This Agreement shall continue in effect for so long as You utilize or have access to the Software or Products. Kocomojo may terminate this Agreement at any time for any reason or for no reason without prior written notice to You. You may terminate this Agreement by giving Kocomojo thirty (30) days advance written notice of such termination. Upon termination of this Agreement, the license granted to You under this Agreement will revert to Kocomojo and You will cease all use of the Software or Products. Within ten (10) business days of termination, You will destroy or deliver to Kocomojo all copies of the Software or any portion thereof in Your possession or under Your control, and You will certify to Kocomojo such destruction or delivery. Your failure to comply with the obligations of this Section will constitute unauthorized use of the Software or Products, entitling Kocomojo to equitable relief as provided in this Agreement as well as Kocomojo’s other legal and equitable remedies. Sections 3, 4, 5, 7 – 10 and 12 – 15 shall survive any expiration or termination of this Agreement.

 

12. Force Majeure.

Neither party shall be liable to the other for any performance delay or failure to perform hereunder, exclusive of any payment obligations, due to any act, omission or condition beyond the reasonable control of the affected party, provided the affected party gives prompt notice to the other and makes reasonable efforts to resume performance as soon as possible.

 

13. System Installation and Tampering.

13.1 System Installation. Kocomojo does not provide any installation services, unless as otherwise set forth in a separate Service Agreement. It is Your responsibility to provide the operating system and any other equipment required to operate the Software, Products or as otherwise specified in the Documentation. Kocomojo reserves the right to change or modify the requirements to operate the Software or Products at any time and at its sole discretion. You shall be solely responsible for installation of the Software, data conversion, data entry and verification of data. KOCOMOJO SHALL NOT BE RESPONSIBLE FOR ANY FAILURE OF THE SOFTWARE OR PRODUCTS BASED ON YOUR OPERATING SYSTEMS AND THIRD PARTY SOFTWARE INCLUDING, BUT NOT LIMITED TO, VIRTUAL MACHINES, LIBRARIES AND/OR HARDWARE. Notwithstanding, to the extent that Kocomojo changes or modifies the requirements necessary to operate the Software and Products, Kocomojo shall use commercially reasonable efforts to provide You with prior notice of such change.

 

13.2 System Tampering. Under no circumstances shall You, or third parties acting on Your behalf, modify, decompile, disassemble or otherwise reverse engineer the Software or Products. You shall be responsible for any breaches or violations of this Agreement by Your employees or other such third parties. If You notify Kocomojo of an error or malfunction in the Software or Products which, after investigation by Kocomojo, is determined to have been caused by any unauthorized modifications, this License is voidable at the option of Kocomojo and voids any warranties, expressed or implied, thereto. At a minimum, however, You shall reimburse Kocomojo, at its then current rates, for all costs incurred by Kocomojo in investigating and correcting such error or malfunction.

 

14. Third Party Software.

You acknowledge that the Software and Products may contain or be accompanied by certain third party or open source software products which may be provided subject to licenses which disclaim all warranties, express or implied, including, without limitation, the Apache License, the General Public License, and other licenses (“Third Party Components”). KOCOMOJO MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THIRD PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR SUITABILITY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. Third Party Components may be accompanied by certain notices or license documentation relating to such Third Party Components (collectively, the “Third Party Notices”). You shall comply with the terms of all Third Party Notices governing Your use of such Third Party Components.

 

15. Miscellaneous.

The Software and Products are subject to export regulations and You agree to adhere to any applicable laws and regulations. You must comply with all United States and international export laws and regulations, which include restrictions on destinations, end users and end use. This Agreement constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agreements between You and Kocomojo with respect to the subject of this Agreement. Except as otherwise expressly provided herein, this Agreement may be modified only by a writing signed by an authorized representative of each party. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware exclusive of its conflict of laws principles. Any dispute hereunder will be negotiated in good faith between the parties within forty-five (45) days commencing upon written notice from one party to the other and neither party will file an action prior to the termination of such forty-five (45) day period. All disputes, controversies or disagreements which may arise between the parties, in relation to or in connection with this Agreement, or for the breach hereof shall be finally settled by arbitration in Delaware, by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award rendered by the arbitrator shall be final and binding upon both parties. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator. The prevailing party shall be awarded its reasonable attorneys’ fees and costs in any arbitration, suit or proceeding arising out of or related to this Agreement. Notices under this Agreement shall be in writing, addressed to Kocomojo at its address below or by sending You a notice via email, and shall be deemed given when delivered personally, or by facsimile (with confirmation of receipt), conventional mail (registered or certified, postage prepaid with return receipt requested) or overnight courier. Nothing contained in this Agreement is intended or is to be construed to create a partnership, joint venture or agency relationship. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect. You may not delegate, assign or transfer this Agreement, or any of Your rights and obligations under this Agreement, and any attempt to do so shall be void. Nothing in this Agreement shall be construed to limit or delay Kocomojo’s ability to seek immediate relief at law or in equity for any breach by You of the license. No waiver of any rights hereunder shall be deemed to be a waiver of the same or other right on any other occasion.