This agreement (the "KUBOSCORE License") is entered into by Kubomatic, a French simplified joint stock company (société par actions simplifiée), having its registered office at 12, Rue des Boers - 80080 AMIENS, registered under No 894 547 439 with the Amiens Trade and Companies Register ("Company") and the entity or person agreeing to the KUBOSCORE License (hereinafter referred to as "You" or the Licensee or the Authorized User) and set forth the terms pursuant to which You may download, access and use KuboScore, an application developed by Kubo Labs running a quality assessment of your employer’s ("Enterprise") Kubernetes cluster(s) (collectively, but exclusive of the Software, "Enterprise’s Cluster") by running multiple tests on such cluster(s).
This KUBOSCORE License is effective on the date on which you click or type to accept it (the "Effective Date"). By accepting this KUBOSCORE License, you accept and you represent and warrant that (i) you have read and understand this KUBOSCORE License and (ii) you agree to this KUBOSCORE License ; if you are also accepting on behalf of Enterprise, you represent and warrant in addition that (iii) you have full right, power and legal authority to bind Enterprise to this KUBOSCORE License and (iv) you agree, on behalf of Enterprise, to this KUBOSCORE License.
Except as otherwise expressly defined herein, capitalized terms used herein shall have the meaning ascribed to them in this Section 1.
"Access Credentials" means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the Software or a Service.
"Authorized User" means each of the individuals, including, as the case may be, individuals acting on behalf of a legal entity, who can legitimately and lawfully access and/or use the Software pursuant to this KUBOSCORE License Agreement, either after having accepted this KUBOSCORE License or having been expressly authorized to do so by Company.
"Company Materials" means the Software, Documentation and Company Systems and any and all other information, data, documents, materials, knowledge, works and other content, devices, methods, processes, hardware, software, applications, other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, in each case including any improvements or modifications thereof, that are provided or used by Company or any Company’s subcontractor in connection with the Software or the Services or otherwise comprise or relate to the Software or the Services, or Company Systems. For the avoidance of doubt, Company Materials do not include Enterprise Data.
"Documentation" means Company then current on-line help, manuals et al. made available by Company in relation to the Software, including any update thereof.
"Enterprise Data" means data from Enterprise’s Cluster(s) that are submitted or retrieved for Processing by the Software.
"Enterprise Systems" means the Enterprise’s information technology infrastructure, including Enterprise’s Cluster(s), computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Enterprise or through the use of third-party services.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby, or (b) prevent a legitimate user from accessing or using the Software as intended herein.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"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.
"License" means the license granted by Company to Licensee pursuant to Section 2.
"Licensee" means the individual and/or entity who subscribes to the License under the terms of this KUBOSCORE License.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
"Process" means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organize, structure, store or adapt; “Processing” has a correlative meaning.
"Services" means the Company’s support services described in this KUBOSCORE License, and any other services provided or made available by or on behalf of Company under this KUBOSCORE License.
"Software" means the Company software and third-party software (either proprietary or open source) provided or made available by Company to Licensee under this KUBOSCORE License.
"Specifications" means the specifications for the Software set forth in Exhibit B and, to the extent consistent with and not limiting of the foregoing, the Documentation.
"Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Software that are not proprietary to Company.
2. LICENSE AND USE
2.1 Scope. Subject to and conditioned on your and Enterprise's compliance with this KUBOSCORE License, Company grants Licensee, during the Term, a royalty-free, non-transferable, non-sublicensable, non-assignable, worldwide, terminable, limited, and non-exclusive License for the Licensee to access and use the Software developed by Company and such Company Materials as Company may supply or make available to Licensee, exclusively for Enterprise’s internal business operations relating to the quality assessment of Enterprise’s Cluster(s) by and through Licensee, in accordance with the conditions and limitations set forth herein (to the exclusion of any other use by Enterprise, or of any other use by an Licensee or any third party for its own business, professional or personal use, and whether or not with a view to make any form of commercial or monetary profit).
For the purpose of this KUBOSCORE License, “use” means to execute, run, display and store the Software for the duration of the licensed rights. All rights not expressly granted under this KUBOSCORE License are reserved by Company. All access, performance or use of the Software and Services except as expressly permitted by this KUBOSCORE License is strictly prohibited. Licensee agrees to use the Software only according to the provisions herein, agrees that a breach hereof will result in irreparable harm to Company and that breach of this Section 2 will constitute a material breach of this KUBOSCORE License.
2.2 Downtime. Company may at any time suspend, interrupt, degrade or otherwise disturb or prevent access to and/or use of the Software or the Services ("Downtime") due, in particular, to :
- maintenance, repair, or any other legitimate reason whatsoever ;
- any circumstances beyond Company's reasonable control, including a force majeure event and including Enterprise's or any Authorized User's use of Third Party Materials, misuse of the Software, or use of the Software other than in compliance with this KUBOSCORE License and the Specifications; and
- any suspension or termination of Licensee's or any Authorized Users' access to or use of the Software.
You acknowledge that, during any Downtime, you may not be able to access or use some or all parts of the Software. Where possible under the circumstances, Company shall make commercially reasonable efforts to notify you in advance of such Downtime.Where relevant, Company shall make commercially reasonable efforts to keep the Downtime to a minimum, but in no event Company shall be liable for any consequences, direct or indirect, of such Downtime.
2.3 Enterprise Control. Enterprise controls Enterprise’s Cluster(s) and its internal and external components, whether owned, leased or licensed by Enterprise, located on Enterprise’s premises or cloud-based environment(s). Enterprise is responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Enterprise’s Cluster and associated data (collectively, "Third-Party Terms"). Through Enterprise’s configuration and use of the Software, Enterprise has control over the types and amounts of Enterprise Data. Company does not retrieve Enterprise Data in any manner whatsoever.
2.4 Support. Subject to the terms hereof, Company will make reasonable efforts to provide You with reasonable basic support services in accordance with Company’s standard practice as specified in Exhibit A. Company has no obligation to provide support for any out-dated versions of the Software.
3. RESTRICTIONS AND RESPONSIBILITIES – LICENSEE OBLIGATIONS
3.1 Limitations and Restrictions. Except as otherwise indicated under this KUBOSCORE License, Licensee does not have any right or license to, and shall not, directly or indirectly, in any manner whatsoever, access or use the Software or Company Materials except as expressly permitted by this KUBOSCORE License and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, Licensee shall not, directly or indirectly, except as this KUBOSCORE License expressly permit:
- reverse engineer, decompile, disassemble or otherwise attempt to discover, create, derive or gain access to the source code, object code or underlying structure, know-how or algorithms relevant to the Software or any documentation or data related to the Software or the Company Materials except to the extent expressly permitted by applicable Law;
- copy, encumber, modify, translate, adapt or create derivative works or improvements of or based on the Software or Company Materials (except to the extent expressly permitted by Company); KuboScore will be available online in case Licensee needs to download it again for backup purposes.
- bypass or breach any security device or protection used by the Services or Company Materials or access or use the Services or Company Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- rent, lease, lend, sell, assign, distribute, publish, transfer or otherwise exploit or make any Software or Company Materials available to any Person other than an Authorized User, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- use, publish or display the Software for the benefit of a third party;
- remove, delete, alter or obscure any product identification, proprietary notices or labels;
- access or use the Software or Company’s Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Company customer);
- access or use the Software or Company Materials for purposes of competitive analysis of the Software or Company’s Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage;
- use or permit use of the Software, including by uploading, emailing, posting, publishing or otherwise transmitting any information or material, for any purpose that may (a) menace or harass any Person or cause damage or injury to any Person or property, (b) involve the publication of any material that is false, defamatory, injurious, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) contain, transmit or activate any Harmful Code, or (f) is illegal or violate applicable Laws; or
- otherwise access or use the Software or Company Materials except as expressly provided herein and in particular beyond the scope of the rights granted hereunder.
3.2 Third parties. Enterprise may, only with the prior written consent of Company, authorize a third-party service provider (a "Third-Party Service Provider", it being specified that each Third-Party Service Provider shall be deemed an Authorized User for the purposes hereof) to use the Software for the benefit of Enterprise. Third Party Service Provider's use of the Software and provision of services to Enterprise related thereto including but not limited to any terms, conditions, warranties or representations associated with such services and any exchange of data between Enterprise and such Third-Party Service Provider is solely between Enterprise and the relevant Third-Party Service Provider. Company shall have no liability or obligation for, and does not endorse or accept any responsibility for Third-Party Service Provider, the contents or use of third party web sites or any transactions completed with Third-Party Service Provider or any third parties. Enterprise is responsible for all acts and omissions of Third-Party Service Provider or any third party Authorized User. Enterprise shall make every reasonable effort to prevent unauthorized third parties from accessing the Software and notify Company promptly of any such unauthorized access or use.
3.3 Compliance. Licensee shall comply with all applicable Laws in connection with its use of the Software.
3.4 Corrective Action and Notice. If Licensee becomes aware of any actual or threatened activity prohibited under Section 3, Licensee shall immediately (a) take all reasonable and lawful measures within their respective control that are necessary to stop and/or mitigate the activity or threatened activity and (b) notify Company of any such actual or threatened activity.
3.5 Cooperation. Licensee shall provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with this KUBOSCORE License.
3.6 Cessation of rights. Upon termination of this KUBOSCORE License and/or of a License, the License rights granted herein shall immediately cease and all copies of the Software and documentation shall be promptly returned to Company or destroyed.
4. SERVICE AND SYSTEM CONTROL
4.1 For the purposes of Sections 4.2 to 4.4, Services shall be deemed to include and refer to the Services and the Free-Trial Services.
4.2 Control and responsibilities. Except as otherwise expressly provided in this Agreement, as between the parties:
- (a) Company has and will retain sole control over the operation, provision, maintenance and management of the Software and Company Materials, including the: (i) Company Systems; (ii) selection, deployment, modification and replacement of the Software; and (iii) performance of support services and maintenance, upgrades, corrections and repairs; and
- (b) Company has no responsibility for: (i) all Enterprise Data, including its content and use; (ii) all information, instructions or materials provided by or on behalf of Enterprise or any Authorized User in connection with the Software; (iii) operation, maintenance and management of, and all access to and use of, the Enterprise Systems and Enterprise’s Cluster; (iv) the security and use of Enterprise's and its Authorized Users' Access Credentials; and (v) all access to and use of the Software and Company Materials directly or indirectly by or through the Enterprise Systems or its or its Authorized Users' Access Credentials, with or without Enterprise’s or the relevant Authorized User’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
4.2 Changes. Company reserves the right, in its sole discretion, to make any changes to the Software, the Services and Company Materials that it deems necessary or useful, in particular to: (a) maintain or enhance (i) the quality or delivery of Company's services to its customers, (ii) the competitive strength of or market for Company's services or (iii) the Company’s services' cost efficiency or performance; or (b) to comply with applicable Law.
4.3 Subcontractors. Company may from time to time in its discretion engage third parties to perform all or part of the Services.
4.4 Suspension or Termination. Company may suspend, terminate or otherwise deny access to or use of all or any part of the Software, the Services or Company Materials, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) you, Enterprise or any Authorized User have failed to comply with any material term of this KUBOSCORE License, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this KUBOSCORE License or in any manner that does not comply with any material instruction or requirement of the Company; or (c) this KUBOSCORE License expire or are terminated. This Section 4.4 does not limit any of Company’s other rights or remedies.
5. CONFIDENTIALITY – PROPRIETARY RIGHTS
5.1 Confidentiality – No rights transferred. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Company includes inter alia non-public information regarding features, functionality and performance of the Software or the Services. The Receiving Party agrees: (i) not to use (except as otherwise permitted herein) or divulge to any third party any such Proprietary Information and (ii) safeguard the Proprietary 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 less than a reasonable degree of care. The foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality, or (d) was independently developed without reference to any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by Law (it being specified that in such a case, the parties hereto shall cooperate in order to oppose such disclosure or to seek a protective order or other remedy, to the extent permitted by Law, and that the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose).
5.2 Company Ownership. All rights, title and interest in and to the Software, the Company Materials and Company Proprietary Information, including all improvements or modifications thereto and derivative works made therefrom, as well as all Intellectual Property Rights therein, are and will remain with Company and the respective rights holders in the Third-Party Materials. For the avoidance of doubt, Company owns and retains all right, title and interest in any trademarks, domain names, patents, software, copyrights, trade name and trade secret rights belonging to Company, and other Intellectual Property Rights, including industrial property rights, and other proprietary rights over the Software as well as in any other technology, invention, concept, system, method, process, and other element of the Software developed by Company. Licensee has no right, license or authorization with respect to any of the Software, the Services or Company Materials (including Third-Party Materials) except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Sections 2 and 3 hereof. Nothing in this KUBOSCORE License constitutes, or shall be interpreted or construed to constitute, any assignment, transfer or conveyance of any right, title or interest, or (except for the license rights expressly granted to Licensee under this KUBOSCORE License) any license or use right, or any right to grant any license over Company’s property.
6.1 Access and Security. Licensee shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to (a) protect all Access Credentials against any unauthorized access to or use of the Software; and (b) control the content and use of Enterprise Data.
6.2 Company does not require personal information for Licensee’s access and use of the Software.
7. TERM AND TERMINATION
7.1 Term. Subject to earlier termination as provided below, this KUBOSCORE License is entered into for one (1) year as from the Effective Date (the "Term").
7.2 Early termination – Termination of Licensee’ employment with Enterprise. The License is granted solely to persons who are validly employed (salariés) by Enterprise. Hence, upon termination or suspension of Licensee’s employment with Enterprise for whatever reason the License shall cease immediately without any formality being required.
7.3 Surviving Terms. All provisions of this KUBOSCORE License which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.
8. REPRESENTATIONS AND WARRANTIES
8.1 Mutual Representations. Each party represents and warrants to the other party that:
(i) as to parties that are legal entities, it is duly organized, validly existing and in good standing as a corporation or other entity under the Law of the jurisdiction of its incorporation or organization;
(ii) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant hereunder;
(iii) as to parties that are legal entities, the execution of this KUBOSCORE License has been duly authorized by all necessary corporate or organizational action of such party;
(iv) this KUBOSCORE License will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
8.2 Additional Representations. Licensee shall use the Software only in compliance with Company’s standard published policies and specifications then in effect. Licensee represents and warrants to Company that it is an employee of Enterprise and has been validly authorized by Enterprise to access and use the Software and the Services, and that it has not given or received notice of termination or suspension of its employment with Enterprise. Licensee represents, covenants and warrants to Company that Licensee owns or otherwise has and will have the necessary rights and consents in and relating to the Enterprise Data so that it does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any other rights of any third party or violate any applicable Law.
9. WARRANTY AND DISCLAIMER
Except as expressly provided herein, Company does not warrant quiet enjoyment of the Software or that the Software or the Services will be uninterrupted or error free or that Company will correct all Software or Services errors; nor does it make any warranty as to accuracy, reliability, interoperability with other software or applications, or as to the results that may be obtained from use of the Software or the Services.
Except as expressly provided herein, the Software and the Services are provided “as is” and “as available”. Unless expressly provided herein, Company makes no representation or warranty, and has no support obligations or liability, with respect to the Enterprise’s Systems. Company makes no warranties of any kind, express or implied, including, but not limited to, warranties of merchantability and fitness for a particular purpose or need, hidden defects, ownership, and non-infringement, to the maximum extent permitted by applicable Law. Company disclaims (i) any collateral security and (ii) any warranty arising as a result of custom, usage or trade and those implied by applicable Law, to the maximum extent permitted by Law. Any changes to Enterprise’s Cluster(s) (including their unavailability) or Third-Party Terms during the Term do not affect Enterprise's obligations under this KUBOSCORE License.
Company does not control the transfer of data over communications facilities, including the Internet, and the Software or Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
10. LIMITATION OF LIABILITY
10.1 Exclusions. To the maximum extent permitted by Law, in no event will Company or any of its providers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees be liable under or in connection with this KUBOSCORE License or its subject matter for: (a) any loss of production, use, business, revenue or profit; (b) any impairment, error, inability to use or loss, interruption or delay of or in connection with the Software or the Services; (c) any loss, damage, inaccuracy, corruption or recovery of data; (d) any indirect, special or consequential damage; (e) any matter beyond Company’s reasonable control including a force majeure event.
10.2 Cap on Liability. Except as otherwise provided below, in no event shall the collective aggregate liability of Company and its providers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees under or in connection with this KUBOSCORE License or its subject matter exceed two hundred (200) euros.
10.3 Time limit. In no event will to the Company or any of its providers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees be liable in respect of any claim made under this KUBOSCORE License under or in connection therewith unless such claim has been duly notified to the Company and/or, as the case may be, the relevant Company’s providers, officers, affiliates, representatives, contractors and employees within one (1) month of the occurrence of the event on which such claim is based on.
10.4 Effect of Licensee or Enterprise Failure or Delay. Company shall not be responsible or liable for any delay or failure of performance caused in whole or in part by Licensee’s or Enterprise's delay in performing, or failure to perform, any of its obligations under this KUBOSCORE License.
11. DATA PRIVACY
Each party shall comply with applicable provisions relating to personal data and shall generally do what is necessary with any competent authorities and to comply with the rights of the persons whose personal data is concerned. Licensee, which shall remain responsible in selecting the Software, shall make sure that the Software comply with the required features in order to proceed with the treatment of personal data contemplated in connection with the use of the Software, in light of applicable rules.
12.1 Severability. To the extent permitted by Law, if any provision of this KUBOSCORE License is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this KUBOSCORE License will otherwise remain in full force and effect and enforceable.
12.2 Assignment. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this KUBOSCORE License, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Company's prior written consent. For purposes of the preceding sentence, and without limiting its generality, where Licensee is a legal entity, any merger, consolidation or reorganization involving Licensee will be deemed to be a transfer of rights, obligations or performance under this KUBOSCORE License for which Company's prior written consent is required. No delegation or other transfer will relieve the Licensee of any of its obligations or performance under this KUBOSCORE License. Any purported assignment, delegation or transfer in violation of this Section 12.2 is void. Company may transfer and assign any of its rights and obligations under this KUBOSCORE License without consent. This KUBOSCORE License is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
12.3 Entire Agreement. This KUBOSCORE License (including the information which is incorporated herein by written reference (including reference to information contained in a URL or referenced policy) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this KUBOSCORE License, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
12.4 Headings. The headings herein are for reference only and do not affect the interpretation of this KUBOSCORE License.
12.5 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this KUBOSCORE License and Licensee does not have any authority of any kind to bind Company in any respect whatsoever.
12.6 Notices. Unless otherwise provided herein, all notices under this KUBOSCORE License will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.7 Governing Law; Jurisdiction. This KUBOSCORE License shall be governed by the laws of France without regard to its conflict of laws provisions. Any legal suit, action or proceeding arising out of or related to this KUBOSCORE License shall be instituted exclusively in the courts of Paris, France, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
EXHIBIT A: SUPPORT TERMS
Licensee may initiate a helpdesk ticket by emailing firstname.lastname@example.org.
Company will use commercially reasonable efforts to respond to all Helpdesk tickets within five (5) business days.
EXHIBIT B: SPECIFICATIONS
Personal Computer / Windows, Linux or MacOS (except for ARM-based chip)