View our Master Service Agreement from September 8, 2020 to October 26, 2022
View our Master Service Agreement from August 24, 2020 to September 7, 2020
View our Master Service Agreement from February 21, 2018 to August 23, 2020
Last Updated: October 27, 2022
THIS AGREEMENT GOVERNS LICENSEE’S ACQUISITION AND USE OF KALLIDUS’ SERVICE. BY EXECUTING THIS AGREEMENT, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL SIGNING THIS AGREEMENT (AND ANY ORDER FORM HEREUNDER) FOR LICENSEE IS SIGNING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY.
1. SCOPE OF AGREEMENT
This Agreement governs Kallidus’ provision of services to Licensee (“Services”). The Services which Kallidus is to provide Licensee are described in one or more ordering documents (each such document, an “Order Form”), each of which is hereby incorporated into this Agreement by reference. In order to be binding each Order Form must be signed by both parties. The parties may add Order Forms from time to time during the term of this Agreement.
2. PROPRIETARY RIGHTS
(a) License to Services. Subject to the terms and conditions of this Agreement, Kallidus grants to Licensee during the Term a non-exclusive, non-transferable, non-sublicensable, license to access and use the Services Licensee orders solely for the purposes described on the applicable Order Form.
(b) Restrictions on Use of Services. The Services are licensed to Licensee for internal use only. In connection with Licensee’s use of the Services, Licensee will comply with all applicable laws, rules and regulations. Licensee will not, and will not permit any third party to: (i) copy, modify, translate, or create derivative works of the Services; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Services; (iii) lend, lease, offer for sale, sell or otherwise use the Services for the benefit of third parties; or (iv) attempt to circumvent any license, timing or use restrictions that are built into the Services.
(c) Kallidus Ownership of Services. Except for the rights granted in Section 2(a) above and unless otherwise stated in an applicable Order Form, Kallidus retains all right, title and interest, including all intellectual property rights, in and to the Services. Licensee acknowledges that the Services include Kallidus’ trade secrets and improper use or disclosure may cause Kallidus irreparable harm. Accordingly, Licensee agrees to use the Services solely as authorized in this Agreement. Licensee further acknowledges that the license granted pursuant to this Agreement is not a sale and does not transfer to Licensee title or ownership of the Services or a copy of the Services, but only a right of limited use as set forth herein. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO KALLIDUS.
(d) Licensee Data. Subject to the terms and conditions of this Agreement, Licensee grants to Kallidus a limited, non-transferable (except pursuant to Section 11(a) below) license to use the information and data entered into the Services by Licensee and/or Licensee personnel or provided by Licensee or Licensee personnel to be posted to the Services, or by any third parties acting on behalf of Licensee or at Licensee’s request, solely for the purpose of providing the Services pursuant to the terms and conditions set forth herein (collectively, the “Data”). Licensee represents and warrants that: (i) it owns the Data posted by it on or through the Services or otherwise has the right to grant the license set forth in this Section 2(d); (ii) the posting and Licensee’s use of Data on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (iii) the posting of Data on the Services does not result in a breach of contract between Licensee and any third party. Kallidus may calculate aggregate, anonymized statistics about its customers’ Data and use those statistics (but not the underlying Data) for purposes of sales, marketing, business development, product enhancement, or customer service.
3. USE OF THE SERVICES
(a) Kallidus’s Responsibilities. Kallidus will make the Services available in accordance with applicable laws and government regulations. Kallidus will maintain appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Data.
(b) Licensee Responsibilities. Licensee will (i) be responsible for its (and as applicable, its personnel’s) compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Kallidus immediately of any such unauthorized access and/or use of which Licensee becomes aware, and (iii) use the Services only in accordance with this Agreement and all applicable laws and government regulations. Licensee will not (iv) make the Services available to any third party (except for any third parties acting on behalf of Licensee or at Licensee’s request, such as recruiting agencies), (v) sell, resell, rent or lease the Services, (vi) interfere with or disrupt the integrity or performance of the Services or any third-party data contained on the Services, including, as applicable, the third-party data of Licensee’s employees, or (vii) attempt to gain unauthorized access to the Services or their related systems or networks.
(c) Fair Use. Licensee agrees that its use of the Services is for the purposes permitted by this Agreement, and without limitation, will adhere to reasonable levels of usage pertaining to third-party APIs that are made available via access to the Services. If Licensee is deemed to be utilizing the Services beyond reasonabl elevels, Kallidus’ may, at its sole discretion take necessary action, including, but not limited to: (i) limit third-party API usage by Licensee, (ii) consult with Licensee to ensure optimal usage of third-party APIs, or (iii) provide additional usage levels available for sale.
(a) Fees. Licensee will pay Kallidus all Fees described on the Order Forms (the “Fees”), in each case subject to the terms and conditions set forth herein and/or in any applicable Order Form. Payment obligations are non-cancelable and subject to Section 6(d) or unless otherwise agreed to by the parties, fees paid are non-refundable.
(b) Payment Terms. For all Fees, Licensee will provide Kallidus with a valid check, money order, credit card or alternative document reasonably acceptable to Kallidus. Licensee is solely responsible for providing Kallidus accurate and complete payment, billing and contact information and for notifying Kallidus of any changes to such information. If Licensee payment method is returned, declined, or otherwise and payment is not obtained by Kallidus, access to Services or Kallidus support personnel may be suspended and Licensee will need to update its payment method or provide another method of payment in order to resume access. Kallidus will provide the Licensee a receipt upon confirmation of payment.
(c) Overdue Charges. Late Fee payments will accrue late interest at the rate of 1.5% of the outstanding balance per invoice, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
(d) Taxes. Licensee will be responsible for payment of all sales, use, property, value-added, withholding, or other federal, state or local taxes except for taxes based solely on Kallidus’ net income. If Kallidus is required to pay any such taxes based on the licenses granted in this Agreement or on Licensee’s use of the Services, then such taxes will be billed to and paid by Licensee.
(e) Overage Fees. Unless otherwise stated on the applicable Order Form, on a monthly basis, Kallidus will audit the number of active employees in the Services and invoice the Licensee for the number of employees above their stated limit. The fees for these employees above the stated limit will be charged on a per employee per month (PEPM) basis. The Overage PEPM will be applied as stated on the applicable Order Form.
5. CONFIDENTIAL INFORMATION
(a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Licensee’s Confidential Information will include Data; Kallidus Confidential Information will include the Services; and Confidential Information of each Party will include business and marketing plans, technology and technical information, product plans and designs, commercial terms of this Agreement, and business processes disclosed by such Party. However, Confidential Information (other than Data) will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reliance.
(b) Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors and agents who need such access in order to perform the Party’s obligations under this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent.
(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
(d) Ownership. The Disclosing Party will at all times retain all right, title and interest to, and ownership of, its Confidential Information. The Receiving Party agrees that the data and information generated by the Services from the Confidential Information shall be and remain the Disclosing Party’s sole property.
(e) Effect of Termination. Upon the termination of this Agreement, or upon the earlier request of the Disclosing Party, the Receiving Party shall promptly redeliver to the Disclosing Party or erase, destroy and render unrecoverable, as applicable, all Confidential Information (and any copies, extracts, and summaries thereof) and shall further provide the Disclosing Party with written confirmation that these actions have been completed within seven (7) days of receipt of a request by the Disclosing Party.
(f) Remedies. Given the nature of the Confidential Information, the Receiving Party agrees that the Disclosing Party would be irreparably damaged by any unauthorized disclosure or use of any Confidential Information in breach of this Agreement. Without prejudice to the rights and remedies otherwise available to the Disclosing Party, the Receiving Party agrees that the Disclosing Party shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including an injunction or specific performance, in the event of any breach or threatened breach of this Section 5 by the Receiving Party or its employees, advisors or consultants. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or equity to the Disclosing Party; provided, however, that Receiving party shall be permitted to retain Confidential Information as required by applicable law and that any Confidential Information retained pursuant for any reason shall remain subject to the confidentiality provisions contained herein for so long as it is retained by Receiving Party irrespective of the term of this Agreement.
6. TERM AND TERMINATION
(a) Term of Agreement. This Agreement takes effect on the date Licensee signs this Agreement and will remain in effect until all Order Forms have expired or been terminated,unless this Agreement is terminated earlier pursuant to Section 6.
(b) Term of Subscriptions. The initial term (the “Initial Term”) of each Service subscription will be described in the applicable Order Form. Except as otherwise described in an Order Form, subscriptions for a Service will renew for subsequent one year terms at the then market rate of subscription, unless either party provides notice to the other of its intent to terminate this agreement not less than thirty (30) days before the end of the then current term.
(c) Termination. If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement, provided that the terminating Party gives the breaching or defaulting Party written notice of termination specifying the underlying breach or default, within 30 days of such breach or default, and such breach or default remains uncured 30 days after the breaching or defaulting Party receives the notice.
(d) Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Services granted to Licensee under this Agreement will immediately terminate. If Kallidus terminates this Agreement pursuant to Section 6(c), all outstanding Fees (as described in any Order Form) will become immediately due and payable to Kallidus. If Licensee terminates this Agreement pursuant to Section 6(c), Kallidus will provide Licensee with a pro-rated refund of any prepaid Fees covering the period from the date of termination through the end of the Term. In no event will expiration or termination of this Agreement relieve Licensee of any obligation to pay Fees payable for the period prior to the date of termination.
(e) Data. Upon expiration or termination of this Agreement for any reason, Kallidus shall provide an export of all Data stored on the Platform (in a reasonably usable digital format) to Licensee, if Licensee requests this within thirty (30) business days of such expiration or termination.
(f) Survival. All terms and provisions of this Agreement, including any exhibits, which by their nature are intended to survive any termination or expiration of this Agreement, will so survive.
7. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the right, power and authority to enter this Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate or organizational action of the party; (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; (e) it will abide by all applicable federal, state and local laws and regulations with respect to its obligations under this Agreement, use of end user data and the products and services offered by each party in connection with this Agreement (f) two-party consent is provided to record customer service telephone calls and video screencasts for training purposes in compliance with all applicable laws; and (g) two-party consent is provided to electronically contact end users for service feedback purposes in compliance with all applicable laws.
8. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND KALLIDUS MAKES NO OTHER PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING THEIR CONDITION, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR THE EXISTENCE OF ANY LATENT OR PATENT DEFECTS. KALLIDUS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER IMPLIED OR STATUTORY WARRANTIES, AS WELL AS ANY LOCAL JURISDICTIONAL ANALOGUES TO THE ABOVE. KALLIDUS DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR THAT THE SERVICES WILL WORK WITHOUT INTERRUPTIONS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FEES PAID BY LICENSEE TO KALLIDUS DURING THE ONE YEAR PERIOD PRECEDING THE CLAIM GIVING RISE TO LIABILITY. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR LOSS OR INTERRUPTION OF USE OF ANY FILES, DATA OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 9 SHALL NOT APPLY WITH RESPECT TO: (I) LOSSES OCCASIONED BY THE WILFUL MISCONDUCT, FRAUD OR GROSS NEGLIGENCE OF A PARTY; (II) ANY INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 10; AND (III) LOSSES OCCASIONED BY A BREACH OF ANY CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5.
Each party (“Indemnifying Party”) will indemnify, defend and hold the other party (“Indemnified Party”) harmless from any claim, action, suit or proceeding made or brought against the Indemnified Party arising out of or related to the Indemnified Party’s breach of any term of this Agreement.
(a) Assignment. Neither party may assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other party; provided, however, that Kallidus may assign this Agreement to a parent, affiliate, subsidiary, or successor to its business, if any. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. Any attempted assignment in violation of this Section 11(a) will be null and void.
(b) U.S. Government Rights. Kallidus provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Kallidus to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
(c) Export Regulations. Licensee agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Licensee covenants that it will not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Kallidus under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. Licensee agrees to indemnify, to the fullest extent permitted by law, Kallidus from and against any fines or penalties that may arise as a result of Licensee’s breach of this provision.
(d) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect.
(e) Governing Law and Jurisdiction. This Agreement is governed by and construed under the laws of the State of Delaware without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Delaware, and the parties agree and submit to the exclusive jurisdiction and venue of these courts.
(f) Modification and Waiver. No waiver or modification of this Agreement will be valid unless made in writing and signed by both parties. The waiver of a breach of any term hereof will in no way be construed as a waiver of any other term or breach hereof.
(g) Entire Agreement. This Agreement, together with the Order Forms, embodies the entire understanding of the parties and supersedes any previous or contemporaneous communications, whether oral or written; and may be amended only by a writing signed by both parties.
(h) Feedback and Promotions. By providing individual end user contact information to Kallidus, Licensee agrees that Kallidus may send occasional promotional messages about a end users account and general service updates, as well messages soliciting end user feedback about the Services and end user’s experience interacting with the Service. Note that Kallidus will not send marketing messages unless end user expressly agrees in writing to receive such messages. If User would like to opt out of receiving these messages, users should contact [email protected].