This LOTUSAI SOFTWARE AGREEMENT is between KERA PARTNERS, INC., a Nevada corporation (the “Provider”) and: (a) if the person entering into this agreement is a natural person and is not entering into this agreement not on behalf of an entity, that person, or (b) if the person entering into this agreement is entering into this agreement on behalf of an entity, that entity (that person or entity, the “Customer”). If the person entering into this agreement is entering into this agreement on behalf of an entity, that person represents that he or she has the authority to bind the Customer to this agreement. This agreement is effective as of the date on which the Customer enters into this agreement (the “Effective Date”).
“Account” means an account with the Software for each User.
“Agent” means the mobile and desktop applications for the Provider’s LotusAI timekeeping software.
“Customer Data” means all information processed or stored through the Software by the Customer or on the Customer’s behalf.
“Fees” means all fees payable by Customer to Provider under this agreement.
“Privacy/Security Law” means laws (a) related to personal data that (b) govern the Provider’s handling of the Customer Data (if any).
“SaaS” means the web-based applications for the Provider’s LotusAI timekeeping software.
“Software” means the Agent and SaaS.
“Term” means the period of time from the Effective Date to the date on which this agreement is terminated pursuant to this agreement.
“User” means any individual authorized by the Customer to use the Software.
(a) The Provider may offer the Customer a trial period (the “Trial Period”), ending on a date as determined by the Provider (the “Trial End Date”), during which the Customer may create and use, in accordance with this Agreement but without charge to the Customer, up to a certain number of Accounts as determined by the Provider. If the Customer accepts any such Trial, the Customer represents and warrants that it has not previously had a Trial for the Software.
(b) The Provider will notify the Customer in writing of the fees that Customer must pay if the Customer wishes to continue using the Software after the Trial End Date (the “Software Fees”).
(c) The Provider may allow Customer to continue accessing and using the Software after the Trial End Date for the sole purpose of accessing reports of time captured by the Software during the Trial Period. The Customer acknowledges that if it does not notify the Provider in writing that it wishes to continue using the Software after the Trial End Date in accordance with Section 2(d), the Customer may no longer be able to access reports of time captured by the Software during the Trial Period.
(d) If, no later than 30 days after the Trial End Date, the Customer notifies the Provider in writing that it wishes to continue using the Software after the Trial End Date, the Customer may continue using the Software in accordance with this agreement and shall pay the Software Fees.
(e) The Provider may amend the provisions relating to the trial (including this Section 2, the Trial Period, the Trial End Date, the period of time during which the Customer may notify the Provider that the Customer wishes to continue accessing and using the Software after the Trial Period), at any time in its sole discretion with written notice to the Customer.
(a) Use of the Software. The Provider grants each User a nonexclusive, limited, nontransferable license during the Term to: (i) reproduce the Agent on a User’s devices and to use the Agent for the Customer’s internal business purposes, pursuant to this agreement, and (ii) access and use the SaaS for the Customer’s internal business purposes, pursuant to this agreement.
(b) Software Revisions. The Provider may revise features and functions of the Software at any time, including by removing such features and functions or introducing updates. The Customer shall promptly install, and shall ensure that the Users promptly install, all updates to the Agent provided by the Provider to the Customer or the Users.
(c) Use of Reports. The provider grants the Customer a nonexclusive, limited, nontransferable license to: (i) reproduce reports of time captured by the Software (the “Reports”) or information from the Reports for the Customer’s internal business purposes, (ii) share the Reports or information from the Reports with the Customer’s personnel, and (iii) share the Reports or information from the Reports with the Customer’s customers, in each case without financial gain. The Customer shall not sell the Reports or information from such Reports.
(d) User Accounts. The Customer may create an Account for each User. The Customer shall ensure that each User has a separate Account. If an Account is deleted before the Account has been active for at least two calendar months, the Customer will still be liable for two calendar months of Software Fees for that Account.
(e) Trial. The Customer acknowledges that the Customer’s experience with using the Software during any trial period may not necessarily reflect the Customer’s experience of using the Software after that trial period, and that any trial does not give rise to any representation or warranty of any kind.
(f) Standard Documentation. The Customer may access and use the Provider’s then-current standard documentation relating to the Software (the “Standard Documentation”) solely as necessary to support the Users’ use of the Software.
(a) Software Fees
(b) Payment. The Customer shall pay Provider the Fees set out in an invoice within 21 days of the Provider sending the invoice to the Customer. For late payments, the Customer shall pay interest charges from the time the payment was due at the rate that is the lower of: (i) 2% per month, or (ii) the highest rate permissible under applicable law. The Provider will not be required to refund the Fees unless required by this agreement.
(c) Taxes. The Customer shall pay amounts due under this agreement to the Provider without deduction for any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including any sales, use, excise, ad valorem, property, withholding, or value-added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, the Provider may require that the Customer submit applicable Sales Taxes to the Provider. However, the preceding sentence does not apply to the extent that the Customer is tax exempt, provided the Customer gives the Provider a valid tax exemption certificate within 30 days of the Effective Date. The Provider’s failure to include any applicable tax in an invoice will not waive or dismiss its rights or obligations pursuant to this Section 4(c). If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, the Customer shall separately pay the Provider the withheld or deducted amount, over and above Fees due. For the avoidance of doubt, this Section 4(c) does not govern taxes based on the Provider’s net income.
(a) Acceptable Use. The Customer shall not, and shall ensure that the Users do not: (i) modify, create derivative works from, distribute, publicly display, or publicly perform the Software; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Software; (iii) use the Software for service bureau or time-sharing purposes, (iv) in any other way allow third parties to exploit the Software; (v) provide Account passwords or other log-in information to anyone who isn’t a User; (vi) share non-public Software features or content with any third party; (vii) access the Software in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Software, or to copy any ideas, features, functions or graphics of the Software; (viii) engage in web scraping or data scraping on or related to the Software, including collection of information through any software that simulates human activity or any bot or web crawler. In the event that the Provider suspects that the Customer and/or a User is in breach of the requirements of this Section 5(a), the Provider may suspend the Customer’s and Users’ access to the Software, in addition to such other remedies as the Provider may have. This agreement does not require the Provider to take any action against the Customer, any User, or other third party for violating this agreement, but the Provider is free to take any such action it sees fit. For the avoidance of doubt, this Section 5(a) does not prohibit the Customer from sharing Reports in accordance with Section 3(c) or from using the Software in combination with (including interfacing with) hardware, software, or other products or services authorized by the Provider.
(b) Unauthorized Access. The Customer shall take reasonable steps, and shall ensure that the Users take reasonable steps, to prevent unauthorized access to the Software, including by protecting Account passwords and other log-in information. The Customer shall notify the Provider immediately of any known or suspected unauthorized use of the Software or breach of its security and shall use best efforts to stop that breach.
(c) Compliance with Laws. In the Customer’s and User’s use of the Software, the Customer shall comply, and shall ensure that the Users comply, with all applicable laws, including Privacy/Security Laws.
(d) Users & Software Access. The Customer is responsible and liable for:
(a) IP Rights to the Software. The Provider retains all right, title, and interest in and to the Software, including all software used to provide the Software and all graphics and user interfaces. This agreement does not grant the Customer any intellectual property license or rights in or to the Software or any of its components, except to the limited extent that such rights are necessary for Customer’s use of the Software as authorized by this agreement. The Customer acknowledges that the Software and its components are protected by copyright and other laws.
(b) Feedback. The Provider has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that the Customer or the Users give to the Provider, and nothing in this agreement or in the parties’ dealings arising out of or related to this agreement will restrict the Provider’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit any Feedback, without compensating or crediting the Customer or the Users. Feedback will not be considered the Customer’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Provider’s products or services but excludes any Customer Data.)
(c) Third-Party IP Rights. If a third party’s intellectual property rights interfere with the Customer’s authorized use of the Software, the Provider, at its own expense, shall promptly: (I) secure for the Customer the right to continue using the Software; (II) replace or modify the Software to make it noninfringing; or (III) terminate Customer’s access to the Software and refund any Software Fees prepaid for the period following termination. This Section 6(c) states the Provider’s sole obligation and liability, and the Customer’s sole remedy, for potential or actual intellectual property infringement by the Software.
(d) Trademarks. Each party retains all right, title, and interest in and to its trademarks and logos. The Customer hereby grants the Provider a non-exclusive, royalty-free license (with a right to sublicense) to use the Customer’s name and primary logos (the “Trademarks”) in any customer list or press release for the purpose of identifying Customer as a customer of Provider. Goodwill associated with the Trademarks inures solely to the Customer, and the Provider shall not take any action to damage the goodwill associated with the Trademarks.
(a) The provisions below of this Section 7 are subject to applicable law, including Privacy/Security Laws.
(b) Data Accuracy. The Provider will have no responsibility or liability for the accuracy of data collected by or uploaded to the Software by the Customer, including Customer Data, De-Identified Data and any other data uploaded by Users.
(c) Erasure. The Provider may permanently erase some or all Customer Data relating to a User if that User’s Account is delinquent, suspended, or terminated for 30 days or more. The Provider may permanently erase some or all Customer Data upon termination of this agreement. This Section (c) does not limit the Provider’s other rights or remedies.
(d) Excluded Data. The Customer warrants that (I) it has not and will not transmit Excluded Data (as defined below), or permit transmission of Excluded Data, to the Provider or its computers or other media and, (II) to the best of its knowledge, Customer Data does not and will not include Excluded Data. The Customer shall inform the Provider of any Excluded Data within Customer Data promptly after discovery (without limiting Provider’s rights or remedies). The Customer acknowledges that: (i) the provisions of this agreement related to Customer Data do not apply to Excluded Data; (ii) the Provider has no liability for any failure to provide protections in the Excluded Data Laws (as defined below) or otherwise to protect Excluded Data; and (iii) the Provider’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. The Provider is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data. (“Excluded Data” means “protected health information” within the meaning of the Health Insurance Portability and Accountability Act, and social security numbers.)
(a) Confidential Information. “Confidential Information” refers to the following items the Provider discloses to the Customer: (a) any document the Provider marks “Confidential”; (b) any information the Provider orally designates as “Confidential” at the time of disclosure, provided Provider confirms such designation in writing within 30 days; (c) the Standard Documentation, whether or not marked or designated confidential; and (d) any other nonpublic, sensitive information the Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in the Customer’s possession at the time of disclosure not labeled “Confidential”; (ii) is independently developed by the Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of the Customer’s improper action or inaction; or (iv) is approved for release in writing by the Provider. The Customer is on notice that the Confidential Information may include Provider’s valuable trade secrets.
(b) Nondisclosure. The Customer shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated in this agreement (the “Purpose”). The Customer: (i) shall not disclose Confidential Information to any employee or contractor of the Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with the Customer with terms no less restrictive than those of this Section 8(b); and (ii) shall not disclose Confidential Information to any other third party without the Provider’s prior written consent. Without limiting the generality of the foregoing, the Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. The Customer shall promptly notify the Provider of any misuse or misappropriation of Confidential Information that comes to the Customer’s attention. Notwithstanding the foregoing, the Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Customer shall give the Provider prompt notice of any such legal or governmental demand and reasonably cooperate with the Provider in any effort to seek a protective order or otherwise to contest such required disclosure, at the Provider’s expense.
(c) Termination & Return. With respect to each item of Confidential Information, the obligations of Section 8(b) will terminate 3 years after the date of disclosure; provided that such obligations related to Confidential Information constituting the Provider’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this agreement, the Customer shall return all copies of Confidential Information to the Provider or certify, in writing, the destruction thereof.
(d) Injunction. The Customer acknowledges that: (i) no adequate remedy exists at law if it breaches any of its obligations in this Section 8; (ii) it would be difficult to determine the damages resulting from its breach of this Section 8, and such breach would cause irreparable harm to the Provider; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement that the Provider prove actual damage or post a bond or other security. The Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security. This Section 8(d) does not limit either party’s right to injunctive relief for breaches not listed.
(e) Retention of Rights. This agreement does not transfer ownership of Confidential Information or grant a license thereto. The Provider will retain all right, title, and interest in and to all Confidential Information.
(f) Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), the Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this agreement:
(a) From Customer. The Customer represents and warrants that: (I) it has the full right and authority to enter into, execute, and perform its obligations under this agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this agreement; (II) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Software; and (III) it is a corporation authorized to do business pursuant to applicable law.
(b) Warranty Disclaimers. THE CUSTOMER ACCEPTS THE SOFTWARE “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (I) THE PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND THE CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (II) THE PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (III) THE PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
(a) Dollar Cap. THE PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAYABLE BY THE CUSTOMER TO THE PROVIDER DURING THE 12 MONTHS BEFORE THE LAST EVENT GIVING RISE TO THE LIABILITY. THE LIMIT OF LIABILITY IN THE PRECEDING SENTENCE IS CUMULATIVE AND NOT PER-INCIDENT.
(b) Excluded Damages. IN NO EVENT WILL THE PROVIDER BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
(c) Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY TO THE BENEFIT OF THE PROVIDER’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (I) TO LIABILITY FOR NEGLIGENCE; (II) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (III) EVEN IF THE PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (IV) EVEN IF THE CUSTOMER’S REMEDIES FAIL THEIR ESSENTIAL PURPOSE. The Customer acknowledges that the Provider has based its pricing on and entered into this agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in Sections 9 and 10 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Section 10, the Provider’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, the Provider’s liability limits and other rights set forth in this Section 10 apply likewise to the Provider’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
(a) During the Term and for 12 months thereafter, the Provider may audit the Customer’s use of the Software on 15 days’ advance written notice. The Customer shall cooperate with the audit, including by providing access to any books, records, computers, or other in-formation that relate or may relate to use of Software. The Customer may designate any such books, records, computers, or other information as Confidential Information. The Provider may employ a third-party auditor to perform the audit. The Provider may choose whether to grant the Customer a license for unauthorized exploitation of the Software or to require deletion. If the Customer has used, reproduced, distributed, or otherwise exploited the Software without the Provider’s authorization, the Customer shall reimburse the Provider for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as the Provider may have.
(b) For each User that does not have a unique Account, the Customer shall promptly pay: (I) the per-Account Software Fees for each month (or part thereof) during which the User used the Software; and (II) interest at the rate of 2% per month or the maximum rate permitted by law, whichever is less, compounded daily, for the same period.
(a) Term. The term of this agreement commences on the Effective Date and continues until terminated by either party in accordance with this agreement.
(b) Termination for Convenience.
(c) Termination for Cause. Either party may terminate this agreement for cause without advance notice if: (i) the other party commences a voluntary case under Title 11 of the United States Code or the corresponding provisions of any successor or foreign law; (ii) anyone commences an involuntary case against the other party under Title 11 of the United States Code or the corresponding provisions of any successor or foreign law and either the case is not dismissed within 60 days of commencement or the court adjudicating the case issues an order for relief or a similar order approving the case; (iii) a court of competent jurisdiction appoints a custodian (as that term is defined in title 11 of the United States Code or the corresponding provisions of any successor or foreign law), or the other party makes an assignment of all or substantially all of its assets to a custodian (under the same definition), for the other party or all or substantially all of its assets; (iv) the other party fails generally to pay its debts as they become due (except to the extent that those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so; or (v) the other party makes a general assignment for the benefit of creditors.
(d) Effects of Termination. Upon termination of this agreement, the Customer shall delete, and shall cause the Users to delete, all copies of the Agent, and the Customer shall cease, and shall cause the Users to cease, all use of the Software. The following provisions will survive termination or expiration of this agreement: (i) any obligation of the Customer to pay Fees incurred before termination; (ii) Sections 6(d), 8, 9, 10, 11, 13; and (iii) any other provision of this agreement that must survive to fulfill its essential purpose.
In case of a dispute, either party may call for escalation by written notice to the other. Within 14 days of such notice, each party shall designate an executive with authority to make commitments that would resolve the dispute (a “Senior Manager”). The parties’ Senior Managers shall meet in person or by video conference (“Dispute Conference”) within 14 days of their designation and shall negotiate in good faith to resolve the dispute. Except to the extent necessary to prevent irreparable harm or to preserve rights or remedies, neither party shall file suit until 14 days after the Dispute Conference.
(a) Time of Day. All references to a time of day are references to the time in Las Vegas, Nevada, United States of America. When a point in time occurs and when a period of time begins and ends will be determined with reference to the time in Las Vegas, Nevada, United States of America.
(b) Independent Contractors. The parties are independent contractors. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
(c) Notices. The Provider may send notices pursuant to this agreement to the Customer’s email contact points provided by the Customer and will be deemed to be received by the Customer 24 hours after they are sent. The Customer may send notices pursuant to this agreement to [email protected], which will be effective when the Customer receives confirmation from the Provider that the Provider received the notice.
(d) Force Majeure. No delay, failure, or default, other than a failure to pay Fees when due, will constitute a breach of this agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control.
(e) Assignment & Successors. The Provider may assign this agreement and any of its rights or obligations hereunder to any person with written notice to the Customer. The Customer shall not assign this agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the other’s express written consent. No assignment of this agreement becomes effective unless and until the assignee agrees in writing to be bound by all the assigning party’s obligations in this agreement. Any purported assignment in violation of this Section 14(e) is void. Except to the extent forbidden in this Section 14(e), this agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
(f) Change of Control. If the Customer undergoes a Change of Control, the Provider may terminate this agreement with written notice. (“Change of Control” means a transaction or series of transactions by which more than 50% of the outstanding shares of the target company or beneficial ownership thereof are acquired within a 1-year period, other than by a person or entity that owned or had beneficial ownership of more than 50% of such outstanding shares before the close of such transactions(s). Change of Control includes any such transaction achieved through statutory merger, consolidation, or stock transfer.)
(g) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this agreement will continue in full force and effect.
(h) No Waiver. Neither party will be deemed to have waived any of its rights under this agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this agreement will constitute a waiver of any other breach of this agreement.
(i) Choice of Law & Jurisdiction. This agreement and all claims arising out of or related to this agreement will be governed solely by the internal laws of the State of Nevada, including applicable federal law, without reference to: (I) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (II) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (III) other international laws.
(j) Construction. The parties agree that the provisions of this agreement result from negotiations between them. This agreement will not be construed in favor of or against either party by reason of authorship.
(k) Technology Export. The Customer shall not: (I) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (II) export the Software or otherwise remove the Software from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, the Customer shall not permit any third party to access or use the Software in, or export the Software to, a country subject to a United States embargo.
(l) Entire Agreement. This agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
(m) Amendment. Other than with respect to increasing the Software Fees pursuant to Section 4(a)(i), this agreement may not be modified except in a written agreement executed by authorized representatives of both parties.
