BETA/PRE-RELEASE SOFTWARE LICENSE AGREEMENT

This Software License Agreement (“Agreement”) is entered into and is effective as of the 29th July, 2016 (“Effective Date”), by and between Kony, Inc., a Delaware corporation, (“Kony”) with its principal place of business at 9225 Bee Caves Road, Building A, Austin, Texas 78733, and _______________ (“Licensee”), with its principal place of business at ___________________________. “Party” means Kony or Licensee and “Parties” means both of them.

WHEREAS, Kony owns the beta, alpha, or other preliminary version of an Kony software product (as defined in Schedule A), related documentation, and any pre-generally available updates, new versions, and upgrades, if any, (collectively, the “Beta Product”) or has the rights to license use of the Beta Product, and is willing to grant to Licensee a limited license to use such Beta Product;

WHEREAS, Licensee and Kony have agreed to a no-obligation evaluation for the purpose of performing tests and evaluations of the Beta Product for Licensee’s own internal use;

WHEREAS, Kony desires to receive from Licensee feedback and results regarding the testing of the Beta Product.

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.  License

Subject to the terms of this Agreement, Kony grants Licensee, effective upon delivery of the Beta Product, a worldwide, revocable (pursuant the termination section of the Agreement), non-exclusive, royalty-free, and non-transferable license to use the Beta Product, either on premise at Licensee’s designated site or in a hosted environment provided by Kony, solely for the purpose of Licensee performing internal testing of the Beta Product (“Purpose”). 

Kony has NOT made the Beta Product generally available as a formal Kony software product available for licensing by its customers (“GA Product”). If Kony does release a GA Product, replacing the Beta Product, and Licensee desires to acquire a license to use that GA Product, then Licensee must license that GA Product under the then-current license terms with Kony.

2.  Restrictions on Use

Licensee agrees NOT to:

a.     use the Beta Product to process production data, or where it may be used as would the GA Product;

b.     use the Beta Product with data or information that has not been backed up;

c.     decompile, disassemble, reverse engineer, or otherwise attempt to derive the Beta Product’s source code from object code, except to the extent expressly permitted by applicable law or treaty despite this limitation;

d.     sell, rent, lease, license, sublicense, display, modify, outsource, or otherwise transfer the Beta Product to any third party;

e.     release any results of performance tests related to the Beta Product to any third party without Kony’s prior written consent;

f.     copy or make any derivative work based upon the Beta Product;

g.     use the Beta Product for any purpose other than the Purpose; and

h.     export or re-export the Beta Product without both the written consent of Kony and the appropriate U.S. and/or foreign government license. 

3.  Fees and Costs

a.     There are no license fees for Licensee’s use of the Beta Product under this Agreement.

b.     Licensee is responsible for all costs and expenses associated with the use of the Beta Product and the performance of all testing and evaluation activities.

4.  Copyright and Ownership

All title to and intellectual property rights in the Beta Product, including, but not limited to all modifications thereto, are owned by Kony and/or its licensors, and are protected by both United States copyright law and applicable international copyright treaties. Licensee agrees not to claim or assert title to or ownership of the Beta Product. To the extent expressly permitted by applicable law or treaty, Licensee may copy the Beta Product for backup or archival purposes, but for no other purpose. Licensee may not remove or alter any copyright or proprietary notice from copies of the Beta Product.

The Beta Product may include reference or reuse of other third party or open source products. For details of any such products referenced or reused in the Beta Product – please contact Kony.

5.  Confidentiality

“Confidential Information” means all proprietary or confidential information that is disclosed by Kony to Licensee or which Licensee has access to in connection with this Agreement, and includes, without limitation, (i) any and all information relating to the Beta Product or services provided by Kony, or Kony’s financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) the terms of this Agreement; and (iii) Feedback. Confidential Information does not include information that Licensee can demonstrate: (a) was lawfully in Licensee’s possession without any obligation of confidentiality prior receipt from Kony; (b) is or becomes a matter of public knowledge through no fault of Licensee; (c) is lawfully received by Licensee from a third party without violation of a duty of confidentiality; or (d) is independently developed by Licensee without use of or reference to the Confidential Information. Licensee shall maintain the confidentiality of the Confidential Information made available, directly or indirectly, by Kony. Licensee shall exercise a reasonable degree of care to protect and preserve the Confidential Information which shall include, without limitation, an obligation to not, without the Kony’s prior written consent: (a) transfer or disclose any Confidential Information to any third party, including to any patenting entity; (b) use any of the Confidential Information for any purpose other than in connection with the Purpose; (c) make copies of the Confidential Information for any purpose other than the Purpose; or (d) take any other action with respect to the Confidential Information that is inconsistent with the confidential and proprietary nature of such information. Notwithstanding the foregoing, Licensee may disclose Confidential Information to Licensee’s employees who have need to know such Confidential Information solely in connection with the Purpose provided that such employees are bound by obligations of confidentiality and use substantially similar (and in no case less protective) to obligations contained in this Agreement. Licensee shall assume full responsibility for any breach of the confidentiality and use obligations in this Agreement caused by any such employees. If the Licensee becomes aware of any unauthorized use or disclosure of the Confidential Information, then Licensee will promptly and fully notify Kony of all facts known to it concerning such unauthorized use or disclosure.  In addition, if the Licensee or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any Confidential Information, the Licensee will not disclose the Confidential Information without providing Kony with commercially reasonable advance prior written notice to allow Kony to seek a protective order or other appropriate remedy or to waive compliance with this provision. If such protective order or other remedy is not obtained, or if Kony waives in writing compliance with the terms of this Agreement, Licensee agrees to furnish only that portion of the Confidential Information which Licensee is advised to furnish by written opinion of Licensee’s counsel and to exercise reasonable efforts to obtain confidential treatment of such Confidential Information. In any event, the Licensee will exercise all commercially reasonable efforts to preserve the confidentiality of Kony’s Confidential Information, including, without limitation, cooperating with Kony to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

6.  Equitable Relief

A breach by Licensee of any of the promises or agreements contained herein may result in irreparable and continuing damage to Kony for which there will be no adequate remedy at law, and Kony shall be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive and/or other equitable relief, and such further relief as may be proper (including monetary damages if appropriate).

7.  Termination

This Agreement shall terminate on the earlier of:

a.          Oct 30 2016 or

b.         immediately upon Kony’s notice of termination for convenience.

Upon termination, Licensee shall cease using the Beta Product and shall uninstall the Beta Product. Licensee agrees to destroy and certify the destruction of the Beta Product and delete all copies that have been installed or upon request return the Beta Product to Kony. Sections 4, 5, 6, 7, 8, 9, and 11 shall survive termination of this Agreement.

8.  DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

a.      THE BETA PRODUCT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. KONY AND/OR ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE BETA PRODUCT WILL SATISFY LICENSEE’S REQUIREMENTS, THAT THE BETA PRODUCT IS WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE BETA PRODUCT WILL BE UNINTERUPTED. KONY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, MADE WITH RESPECT TO THE BETA PRODUCT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

b.     TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL KONY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA PRODUCT, OR ANY ERRORS OR DEFECTS IN THE BETA PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES OR COSTS RELATING TO THE LOSS OF PROFITS, BUSINESS, GOODWILL, DATA OR COMPUTER PROGRAMS, WORK STOPPAGE, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF KONY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED.

 

9.   Governing Law; Mandatory Arbitration

      This Agreement, and all of the rights and duties of the Parties arising from or relating in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be governed by, construed and enforced in accordance with the laws of the State of Texas (excluding any conflict of law provisions of the State of Texas which would refer to and apply the substantive laws of another jurisdiction).

10.  Miscellaneous

a.     Kony shall have no obligation to support, service, or repair the Beta Product. Licensee acknowledges and agrees that Kony is under no obligation to provide any maintenance releases, updates, or new versions of the Beta Product. Kony does not guarantee that the Beta Product will become a GA Product or upgrade to a GA Product. If a GA Product is announced replacing a Beta Product, Kony does not guarantee that the GA Product will be similar in functionality to the comparable Beta Product version licensed under this Agreement. This Agreement creates no obligation on behalf of Licensee to license any GA Product.

b.       This Agreement is the entire understanding between Licensee and Kony and replaces any prior communication, agreement, or understanding of any kind, oral or written, concerning the subject matter hereof. No amendment or other modification to this Agreement shall be valid or binding with respect to either Party unless agreed to in writing and signed by an authorized officer of each Party.

c.       If any part of this Agreement is found to be invalid or unenforceable, that part will be modified to the extent necessary to eliminate its invalidity or unenforceability, and the remaining terms will be in full force and effect. Licensee may not assign or otherwise transfer this Agreement or any of its rights or obligations without the prior written consent of Kony.

d.    Any forbearance or delay on the part of either Party in enforcing any provision of this Agreement or any of its rights hereunder shall not be construed as a waiver of such provision or of a right to enforce the same for any future occurrence.

e.       Nothing in this Agreement will be construed as creating a joint venture, partnership, or principal/agent relationship between the Parties.

f.     This Agreement may be executed in counterparts which, taken together, shall constitute one agreement and each Party may execute this Agreement by signing such counterpart. Facsimile signatures will be treated as originals. The Parties agree and acknowledge that notwithstanding any law or presumption to the contrary, the exchange of copies of this Agreement and the signature pages by electronic transmission shall constitute effective execution and delivery of this Agreement for all purposes, and signatures of the Parties transmitted electronically shall be deemed original signatures for all purposes.

e.       Licensee agrees that Kony may reference their participation in the Beta Program, describing Licensee’s use and experiences with Beta Product.  We will only use your Licensee’s name, trademarks, symbols, logos and other identifying information if you agree that we may do so in writing. The usage of the above mentioned properties will also be subject to any guidelines you provide.

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized officers on the dates specified below.

 

KONY, INC.                                                                LICENSEE - ____________________

 

By:                                                                               By:                                                      

Name:    _______                                                         Name:                                                  

Title:                                                                            Title:                                                   

Date:                                                                             Date:                                                    

SCHEDULE A

PRODUCT(S)

Fall Beta Release for Kony Mobility Platform 2016

The Kony Mobility Platform is an open and standards-based, integrated platform for mobile app development. It supports the entire application software development lifecycle (SDLC) and empowers enterprises to quickly design, build, deploy, and manage multi-channel app experiences.

The fall Beta Release for Kony Mobility Platform 2016 includes the following component products:

·       Kony Visualizer (BETA)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE B

BETA TEST SITE, TEST SCHEDULE AND TEST OBLIGATIONS DESIGNATED USER CONTACT AND DESIGNATED BETA COORDINATOR

BETA TEST SITE

Please complete the following information regarding your company which is acting as a beta test site.

Company Name: ________________________________________
Primary contact Name: ___________________________________
Address: ______________________________________________
Address2: _____________________________________________
Phone #: ______________________________
FAX #: _______________________________
email address: _________________________
Secondary contact Name: ________________________________
Phone #: ______________________________
FAX #: _______________________________
email address: _________________________

TEST SCHEDULE
The current plan is for a XX week beta testing period beginning Mmm dd, yyyy and ending Mmm dd, yyyy. This period may be extended by Kony if additional testing is needed. If additional product releases are called for or if the test schedule changes, Kony will define and provide a new release. If desired, the beta test site may accept a new release prior to Mmm dd, yyyy and the testing will be covered by the terms and conditions of this agreement. The duration of testing for any new release will be defined for that release and provided prior to acceptance by the beta test site.

TEST RESULTS AND REPORTING
Kony will have responsibility for administering the Beta program. This includes gathering information for the purpose of site selection, management of ongoing communication with the Beta site and collection and analysis of testing results

In order to facilitate these tasks, Kony will periodically communicate with the Beta site via email, electronic surveys and web conference.  Beta sites will be expected to use these tools or reporting and communication as the Beta progresses.

TEST SUITES
Kony is not supplying any test suites for the Beta testing. Beta Sites will be expected to test each of the major functional areas of the product as they would use it in their environment.

BETA TEST OBLIGATIONS
The user is expected to perform comprehensive testing using tools and features in the major feature sets of Beta Product as described in Schedule A: product base, inventory, syslog analysis, availability, software image management and server administration.

The user is expected to report all testing results to Kony including defect reports, product failures, etc. The user will also be expected to complete additional forms and surveys to characterize their experience with Beta Product.

The user is expected to commit sufficient time to this Beta to meet the testing and reporting requirements above.