Cultivate Software License Agreement
“Virtual On-Premise” or “Self-Hosted”
This Software License Agreement, including all attachments, exhibits, schedules, addenda, (this “Agreement”), is entered into by and between Cultivate Technology Inc., a Delaware corporation with its principal place of business at 326 Ritch Street, San Francisco, CA 94107, USA (“Cultivate”) and the organization (“Customer”) set forth in the Order Form that references this Agreement. This Agreement is effective on the date the initial Order Form is fully executed by the parties (the “Effective Date”).
|NOTICE: Customer is using a “self-hosted” version of the Software, which means the Software is installed and running on Customer owned/controlled servers. Therefore, Customer’s internal email, chats, and calendar content does not leave the Customer’s servers, and is not accessible by or transmitted to Cultivate (the company). Cultivate’s access to Customer’s personal data is limited to statistics/metadata, persistent online identifiers, names and email addresses, and in all cases, Customer’s personal data will only be used to provide, maintain, and improve the Software in accordance with this Agreement.|
“A.I. Learnings” are essentially Cultivate’s “machine learning” capabilities and means, with respect to Customer’s use of and the operation of Cultivate’s products and services, all learnings, insights, ideas or improvements with regard to or related to such products and services (including the Software therein) or derivative works or improvements thereto.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means power to direct the affairs of an entity, and “ownership” means beneficial ownership of more than 50% of the voting equity or other equivalent voting interests of the entity.
“Anonymous Usage Data” means anonymous data derived from Customer’s use of the Software.
“Customer Data” means all data either provided by Customer or entered, collected or generated on Customer’s behalf in connection with the Software.
“Customer Environment” means the computing environment separately procured, prepared and maintained by Customer for the access to and use of the Software.
“Documentation” means the help materials, including technical specifications, describing functionality of the Software provided by Cultivate.
“Feedback” means comments, questions, ideas, suggestions or other feedback provided by Customer and its Affiliates relating to the Software.
“Intellectual Property Rights” or “IP Rights” means all current and future worldwide intellectual property (or “IP”) rights, including all patents, copyrights, trademarks, service marks, trade names, domain name rights know-how and other trade secret rights, and all other IP rights and similar forms of protection, and all applications and registrations for any of the foregoing.
“License Term” means the permitted term specified in an Order Form during which Customer is licensed to use the Software, subject to this Agreement.
“Order Form” means an ordering document entered into by and between Cultivate and Customer that references this Agreement and details the Software to be provided by Cultivate, associated fees, and any other transaction specific terms and conditions.
“Software” means the computer software program(s) that are specified on any Order Form referencing this Agreement, which also includes any proprietary third party software or “open source” software or components not owned or developed by Cultivate that is provided as part of or that accompanies the software.
2.1. License Scope. Subject to the terms of this Agreement, Cultivate grants to Customer a limited, revocable, non-exclusive, nontransferable and non- sublicensable right and license to install and use, solely for internal business purposes, the Software in accordance with the purchased scope of use as set forth in the Order Form and this Agreement. Customer may permit its Affiliates to use the Software and Documentation solely on behalf of and for the benefit of Customer or Affiliates, provided that Customer shall be liable for the compliance of all Affiliates with this Agreement.
2.2. Delivery and Acceptance. Cultivate will enable the Customer to install, deploy and use the Software, at which point the Software will be deemed delivered to and accepted by Customer. Customer is responsible for procuring and maintaining the Customer Environment and agrees to engage with Cultivate to deliver the Software by making necessary resources available to Cultivate.
2.3. Restrictions. Customer acknowledges that the Software and its structure, organization and source code constitute valuable trade secrets of Cultivate. Accordingly, except as otherwise expressly set forth in this Agreement, Customer may not, nor permit any third party, to: (a) translate, disclose, modify, adapt, or create any derivative works based on the Software; (b) market, sell, sublicense, use, distribute, publish, display, reproduce, rent, lease, loan, assign, provide access or otherwise transfer to a third party the Software or Documentation or any copy thereof, in whole or in part; (c) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part; (d) operate the Software for the benefit of any third party; (e) remove or obscure any product identification, proprietary copyright or other notices contained in the Software; (f) access or use the Software for competitive purposes; (g) publicly disseminate information regarding the performance of the Software; (h) circumvent contractual usage restrictions.
2.4. Third-Party Software. Open source software libraries, components and utilities, and other third-party software not owned or developed by Cultivate are embedded in the Software. The publicly available open source license terms governing the open source software shall take precedence over this Agreement with respect to the open source software to the extent that the Agreement imposes greater restrictions on Customer than those allowed by the respective open source license. Other third-party software embedded in the Software as provided by Cultivate may be used only in conjunction with, as part of, and through the Software as provided by Cultivate, and the applicable licensor of such third-party software retains all other intellectual property rights therein.
2.5. License Review. Cultivate, may, upon reasonable notice, review Customer’s records of Software usage to verify that Customer has used the Software in the manner authorized herein.
2.6. Affiliates. Where Affiliates of the parties conduct business hereunder, references to Customer shall include any applicable Affiliate of Customer. Customer will provide Cultivate with reasonable notice of each such Affiliate.
2.7 Customer Instructions. Cultivate is as a “processor” or “service provider” of personal data contained in Customer Data. Customer instructs, and grants Cultivate a non-exclusive, worldwide right to: process, use, copy, store, anonymize, transmit, display, modify, and create derivative works of the Customer Data, to the extent necessary to provide, maintain, and improve the Software and related services.
3. SUPPORT. Cultivate will provide general maintenance and support to Customer for the Software, provided that Customer: (i) notifies Cultivate of issues; (ii) reasonably engages with Cultivate to resolve issues; and (iii) makes reasonable efforts to apply the Cultivate-recommended solution. Customer shall have direct access to Cultivate via standard telephone, email and/or web support services during Cultivate’s normal business hours (M-F 9-5 Pacific).
4.1 Customer Data. The Customer Data, all copies and portions thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Customer notwithstanding any other provision in this Agreement. Cultivate is not authorized, and shall not permit any third party, to use the Customer Data except as expressly authorized herein.
4.2 Cultivate Property. The Software, Documentation, A.I. Learnings, and Anonymous Usage Data, all copies and portions thereof, and all Intellectual Property Rights therein, including, derivative works therefrom (“Cultivate Property”) are and shall remain the sole and exclusive property of Cultivate notwithstanding any other provision in this Agreement. In no event shall Cultivate Property be an asset of Customer.
5. THIRD-PARTY PRODUCTS. Customer’s receipt or use of any third-party products or services is subject to a separate agreement between Customer and the third-party provider. If Customer enables or uses third-party products or services with the Software, Customer acknowledges that the third-party providers may access or use Customer Data as required for the interoperation of their products and services with the Software. Customer is solely responsible for any access to or use of Customer Data by third-party providers or their products or services, and for the acts and omissions of any third-party provider or its products or services.
6. PAYMENT; TAXES. All fees are set forth in the applicable Order Form and (i) shall be paid by Customer within thirty (30) days from the date of the invoice and (ii) are exclusive of any taxes, and Customer is responsible for payment of all such taxes excluding taxes based solely on Cultivate income. Unpaid amounts due and payable hereunder may be subject to interest at the lesser of one and one- half percent (1.5%) per month or the maximum permitted by law, plus collection costs.
7. TERM AND TERMINATION
7.1. Term. This Agreement commences on the Effective Date and unless earlier terminated pursuant to the terms herein, will continue as long as an Order Form is in effect between the Parties.
7.2. Termination for Cause. Either party may terminate this Agreement (or any affected Order Schedule) (a) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach, except that termination will take effect on notice in the event of a breach of Section 2.3 (“Restrictions”) or 12 (“Confidential Information”); or (b) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors (and not dismissed within sixty (60) days thereafter).
7.3. Effect of Termination. Upon termination of this Agreement by Customer pursuant to Section 7.2, Customer is entitled to a prorated refund of prepaid fees relating to the Software applicable to the remaining period in the applicable License Term. Upon termination of this Agreement by Cultivate pursuant to Section 7.2, fees relating to the Software applicable to the duration of any applicable License Term will be immediately due and payable.
In addition, upon termination of this Agreement: (a) all rights granted to Customer under this Agreement, and Cultivate’s obligation to provide support and the Software will terminate; and (b) any payment obligations accrued pursuant to this Agreement, as well as the provisions of Section 2.3 (“Restrictions”), 2.5 (“License Review”), 4 (“Ownership”), 5 (“Third-Party Products”), 6 (“Payment; Taxes”), 7.3 (“Effect of Termination”), 8.4 (“Warranty Disclaimer”), 9 (“Limitation of Liability”), 10.1.1 (“Indemnification by Cultivate”) but only with respect to claims arising from Customer’s use of the Software during the License Term, 10.1.2 (“Indemnification by Customer”), 12 (“Confidential Information”), and 13 (“General Terms”) of this Agreement will survive such termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
8. LIMITED WARRANTY
8.1. Mutual Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement.
8.2. Performance Warranty. Cultivate warrants to the Customer that the Software will substantially conform to the applicable Documentation, provided that the Customer (a) is not in breach of any payment or other obligations herein and that: (b) the Software has been properly installed and used at all times and in accordance with the applicable Documentation; (c) the Software has not been altered or modified by anyone other than Cultivate or its designee; (d) the Customer Environment meets Cultivate’s then-current minimum requirements as communicated to Customer; and (e) the Software is not provided on a no-charge, beta or evaluation basis. Cultivate will endeavor to maintain the Software in accordance with the service levels displayed on https://cultivate.com/sla/ as of the Effective Date. Cultivate will, at its own expense correct any reproducible error in the Software reported to Cultivate by Customer in writing. If Cultivate determines that it is unable to correct the error, Cultivate will at its discretion (i) use commercially reasonable efforts to replace the Software or (ii) terminate the applicable Order Form and refund any applicable prepaid but unused fees. This Section 8.2 represents Customer’s exclusive remedy, and Cultivate’s entire liability, for any breach of the warranties set forth herein.
8.3. Malicious Code. Cultivate will not knowingly introduce viruses, worms, Trojan horses or other code, files, scripts, or agents intended to do harm.
8.4. Warranty Disclaimer. EXCEPT FOR THE EXCLUSIVE WARRANTIES SET FORTH IN THIS SECTION 8, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SOFTWARE, DOCUMENTATION AND SUPPORT ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CULTIVATE MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, REGARDING OR RELATING TO THE SOFTWARE, DOCUMENTATION OR SUPPORT. CULTIVATE SPECIFICALLY AND EXPLICITLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. CULTIVATE DOES NOT WARRANT THAT SOFTWARE WILL BE ERROR FREE OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED.
8.5. Customer Warranties. Customer warrants that: (i) Processing of Customer Data in accordance with this Agreement will not violate any intellectual property, proprietary, privacy, or other right of any person (ii) all required notices have been given to, and required consents and rights have been obtained from, the relevant data subjects and any other party as may be required for processing under this Agreement (iii) Customer Data is accurate and complete and (iv) Customer will comply with all laws.
9. LIMITATION OF LIABILITY
9.1. Liability Cap. EXCEPT FOR EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 10 (“INDEMNIFICATION”), 12 (“CONFIDENTIAL INFORMATION”), INFRINGEMENT OF THE OTHER PARTY’S IP RIGHTS OR CUSTOMER’S BREACH OF SECTION 2.3 (“RESTRICTIONS”): IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY AND/OR DUE FROM CUSTOMER FOR THE THEN-CURRENT ANNUAL LICENSE TERM, UNDER THE APPLICABLE ORDER FORM(S) RELATING TO THE CLAIM.
9.2. Consequential Damages. IN NO EVENT SHALL EITHER PARTY, OR PARTY’S AFFILIATES OR BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN CONNECTION WITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN OF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Limitations Fair, Reasonable. PARTIES ACKNOWLEDGE THAT LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
10.1.1. By Cultivate. Cultivate shall defend Customer from and against any claim by a third party alleging that the Software, when used as authorized under this Agreement, infringes any trademark or copyright of such third party, enforceable in the jurisdiction of Customer’s use of the Software, or misappropriates a trade secret (but only to the extent that such misappropriation is not a result of Customer’s actions) (“Infringement Claim”) and shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer by a court of competent jurisdiction or agreed in settlement by Cultivate (including reasonable attorneys’ fees) resulting from such Infringement Claim.
10.1.2. By Customer. Customer shall defend Cultivate from and against any claim based upon Customer’s breach of Section 8.5 (“Customer Warranties”), and shall indemnify and hold harmless Cultivate from and against any damages and costs awarded against Cultivate by a court of competent jurisdiction or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
10.1.3. Indemnification Requirements. A party (the “Indemnified Party”) may seek indemnification from the other party (the “Indemnifying Party”) only if the Indemnified Party: (a) promptly provides the Indemnifying Party with a written notice of the claim; (b) allows the Indemnifying Party sole control of the defense and settlement of the claim; and (c) reasonably cooperates in response to the Indemnifying Party’s requests for assistance and information. The Indemnified Party may participate in the defense of the claim, at the Indemnified Party’s sole expense (not subject to reimbursement). Indemnifying Party will not, without Indemnified Party’s prior written consent, which shall not be unreasonable withheld, settle, compromise or consent to the entry of any judgement that may adversely affect the Indemnified Party.
10.2. Exclusions. Cultivate has no obligation and assumes no liability with respect to any claim based on: (a) any modification of the Software that is not performed by or on behalf of Cultivate, or was performed in compliance with Customer’s specifications; (b) Customer Data or the combination, operation or use of the Software with Customer Data or any other products, services, or equipment not provided by Cultivate where there would be no Infringement Claim but for such combination; (c) use of the Software other than in accordance with this Agreement and the Documentation; (d) any third-party deliverables or components contained within the Software; (e) use of any older version of the software when use of a newer revision would have avoided the Infringement Claim; (f) open source software, freeware and any derivatives or other adaptations thereof; or (g) any software provided on a no-charge, beta or evaluation basis.
10.3. Remedies. If Customer’s use of the Software is or is likely to be enjoined or if Cultivate determines such actions are reasonably necessary to avoid liability, Cultivate may, at its option: (i) procure for Customer the right to use the Software in accordance with this Agreement; (ii) replace or modify the Software to make it noninfringing; or (iii) terminate Customer’s right to use the Software and discontinue the related support, and upon Customer’s deletion of the Software, refund prorated pre-paid fees for the remainder of the applicable License Term.
11. SECURITY. Cultivate will maintain commercially reasonable physical, technical and administrative security measures designed to protect Customer Data within its control from unauthorized access, destruction, use, modification, or disclosure, and shall include without limitation: (i) securing business facilities, data centers, servers, back-up systems and computing equipment; (ii) implementing network, device application, database and platform security; (iii) implementing and maintaining incident response policies and data retention policies; (iv) implementing authentication and access controls within media, applications, operating systems and equipment; (v) encrypting Customer Data transmitted over public or wireless networks; and (vi) implementing appropriate personnel security and integrity procedures and practices.
12. CONFIDENTIAL INFORMATION. “Confidential Information” means information and/or materials provided by one party (“Discloser”) to the other party (“Recipient”) which is identified as confidential at the time of disclosure or should be reasonably known by the Recipient to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. The following information shall be considered Confidential Information of Cultivate whether or not marked or identified as such: this Agreement, the Software, Documentation, pricing information, any Cultivate technology, product roadmap or strategic marketing plans, non-public material relating to the Software. Except as expressly authorized herein, the Recipient shall (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that such representatives are bound to confidentiality obligations no less protective of the Disclosure than this Section 12 and that the Recipient remains responsible for compliance by any such representative with the terms of this Section 12. The Recipient’s confidentiality obligations shall not apply to information that the Recipient can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Recipient ; (iii) is rightfully obtained by the Recipient from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Recipient who had no access to such information. The Recipient may make disclosures to the extent required by law or court order, provided the Recipient notifies the Discloser in advance and cooperates in any effort to obtain confidential treatment. The Recipient acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Recipient, the Discloser shall be entitled to seek appropriate equitable relief in addition to other legal remedies.
Within thirty (30) days after termination of this Agreement, the Recipient shall return or destroy all Confidential Information and materials containing any Confidential Information of the Discloser. However, Recipient may retain one copy of Discloser’s Confidential Information in accordance with Recipient’s commercially reasonable backup procedures.
13. GENERAL TERMS
13.1. Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, provided that no such consent will be required to assign this Agreement in its entirety to a successor in interest in connection with a merger, acquisition or sale of all or substantially of the assigning party’s assets, provided that the assignee has agreed to be bound by all of the terms of this Agreement, and all fees owed to Cultivate are paid in full.
13.2. Governing Law; Jurisdiction; Venue. This Agreement is governed by the laws of the state of Delaware, USA, without regard to conflicts of law provisions thereof. Claims arising out of or in connection with this Agreement are subject to the exclusive jurisdiction and venue of the state and federal courts located in San Francisco, California, USA. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
13.3. Notice. Notices to a party will be sent (i) by email (to Cultivate at the email address below, and to Customer at the email address listed on the Order Form) or (ii) first-class mail, overnight courier or prepaid post (to Cultivate at the address as identified on the first page of this Agreement and to Customer at the address listed on the Order Form) and will be deemed given seventy-two (72) hours after mailing or upon confirmed delivery or receipt, whichever is sooner. For mailed notices, Customer will address notices to Cultivate Legal Department, with a copy to firstname.lastname@example.org and email@example.com. Either party may change its address for notices by giving the other party at least thirty (30) days prior written notice of the change.
13.4. Amendments; Waivers; Severability. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
13.5. Entire Agreement; Interpretation; Counterparts. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement. Headings are for convenience only and “including”, “e.g.”, and similar terms will be construed without limitation. In the event of a conflict between the terms of this Agreement and the terms of any Order From or other exhibit or addendum hereto, such conflict will be resolved in the following order: (a) any Order Form; (b) a mutually executed data protection addendum (c) this Agreement and (d) any other exhibit or addendum. Any preprinted terms on any Customer ordering documents or terms referenced or linked therein have no effect on the terms of this Agreement and are hereby rejected, including where such Customer ordering document is signed by Cultivate. This Agreement may be physically and/or electronically executed, in counterparts, which taken together shall form one binding legal instrument.
13.6. Independent Contractors. Parties are independent contractors. No partnership, joint venture, employment, franchise or agency is created between the parties. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
13.7 Publicity. Cultivate may use Customer’s name and logo (so long as in accordance with any mark guidelines provided by Customer to Cultivate) in Cultivate’s promotional materials, including, without limitation, press releases, customer lists, and presentations to third parties, unless written notice revoking such permission is provided to Cultivate.
13.8 Feedback. Cultivate may freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on Intellectual Property Rights or otherwise.
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