p1ge0n Software License Agreement

Effective Starting: June 1, 2022

THIS AGREEMENTis between KELM TECHNOLOGIES LLC DBA p1ge0n (“p1ge0n”)at 7328 Forest Cove Lane, Unit C, Northfield OH 44067 and the end user of the software (“LICENSEE”), collectively referred to as the “PARTIES”.

WHEREAS, p1ge0n is the owner of p1ge0n software, consisting of p1ge0nJump and/or p1ge0nFly, any related documentation (the “SOFTWARE”), and web-based p1ge0n services.

WHEREAS, p1ge0n wishes to license the SOFTWARE to the LICENSEE and the LICENSEE wishes to obtain the software license under the terms and conditions stated below.

The EFFECTIVE DATE of this AGREEMENT is the date which is the earlier of (a) the initial access or use by the LICENSEE of the SOFTWARE or (b) the effective date of the first Order referencing this AGREEMENT.

By using or accessing p1ge0n SOFTWARE, the LICENSEE represents and warrants that: (a) LICENSEE assents to be bound by this AGREEMENT, (b) the individual accepting this agreement, if accepting on behalf of a company, government, or other entity, has all necessary corporate or other authority to bind the entity which is the end-user of the SOFTWARE, (c) LICENSEE has all necessary corporate or other authority or licenses to perform its obligations hereunder.  If the LICENSEE does not wish to agree to the terms of this AGREEMENT, LICENSEE must not use or access the SOFTWARE.

NOW, THEREFORE, in consideration of the promises and agreements set forth herein, the parties, each intending to be legally bound hereby, do promise and agree as follows:

1       LICENSE

1.1          Under this Agreement p1ge0n grants to the LICENSEE a non-exclusive and non-transferable license (the “LICENSE”) to use the SOFTWARE, without the right to sublicense.

1.2          This License permits the LICENSEE to install the SOFTWARE onto multiple computer systems.  LICENSEE may make copies of the SOFTWARE as necessary for use by the LICENSEE and for backup purposes. 

1.3          Title, copyright, intellectual property rights and distribution rights of the SOFTWARE remain exclusively with p1ge0n. Intellectual property rights include the look and feel of the SOFTWARE. This Agreement constitutes a license for use only and in no way is a transfer of ownership rights to the SOFTWARE.

1.4          The rights and obligations of this Agreement are personal rights granted to the LICENSEE only.  The LICENSEE may not assign any of the rights or obligations granted under this agreement to any other person or legal entity.  The LICENSEE may not make available the SOFTWARE for use by one or more third parties.

1.5          The SOFTWARE may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.

1.6          Failure to comply with any of the terms under the License section will be considered a material breach of this agreement.

2       MODIFICATIONS TO THE SOFTWARE

2.1          Error corrections and updates. p1ge0n will provide LICENSEE with error corrections, bug fixes, patches, or other updates to the SOFTWARE licensed throughout the duration of this LICENSE.

2.2          Other modifications. LICENSEE may request that p1ge0n incorporate certain features, enhancements, or modifications to the SOFTWARE, which p1ge0n may in its sole discretion incorporate into the SOFTWARE and distribute to any other of p1ge0n’s licensees.

2.3          Title to modifications. All such error corrections, bug fixes, patches, or enhancements shall be the sole property of p1ge0n.

3       LIMITATION OF LIABILITY

3.1          p1ge0n warrants to LICENSEE for a period of thirty (30) days from LICENSEE’s first use of the SOFTWARE that the SOFTWARE will operate substantially pursuant to the documentation of the SOFTWARE.  Any liability of p1ge0n will be limited exclusively to repair or replacement of the SOFTWARE, or if repair or replacement is inadequate as a remedy or at p1ge0n’s determination impractical, to refund any fees paid for use of the SOFTWARE.

3.2          The SOFTWARE is provided by p1ge0n and accepted by the LICENSEE “as is”.  p1ge0n will not be liable for any general, special, incidental or consequential damages including but not limited to: loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the LICENSEE arising out of the use or failure to use the SOFTWARE.  The entire risk as to the quality and performance of the SOFTWARE is with LICENSEE.

3.3          p1ge0n makes no warranty expressed or implied regarding the fitness of the SOFTWARE for a particular purpose or that the SOFTWARE will be suitable or appropriate for the specific requirements of the LICENSEE.

3.4          p1ge0n does not warrant that use of the SOFTWARE will be uninterrupted or error-free.  The LICENSEE accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.

3.5          Force majeure. p1ge0n will be free of liability to the LICENSEE where p1ge0n is prevent from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where p1ge0n has taken any and all appropriate action to mitigate such an event.

4       LICENSE TERM AND PAYMENT

4.1          License Term and Renewals. The License Term will be indicated in the Order as applicable. The License Term and provision of services by p1ge0n will commence on the Order date unless a different start date is indicated on the Order and expire on the expiration date indicated on the Order.  Systems to receive p1ge0n services will be identified on the Order.

4.2          Increased Scope of Use. During the License Term, the LICENSEE may increase the Scope of Use (adding additional systems to the service).  Any increases to the Scope of Use will be subject to additional fees, as set forth in the applicable Order.

4.3          Payment. All fees must be paid in accordance with each Order, by the due dates and in the currency specified in the Order.  Except as otherwise specified in the Order, (a) fees are based on SOFTWARE licensed and services purchased and not actual usage, (b) all payment obligations under this AGREEMENT and non-cancelable and non-refundable except under the warranty in Section 3.1.  If LICENSEE fails to pay by the due date, p1ge0n will issue a written notice in which LICENSEE will have thirty (30) days to complete payment.  If no payment is received by the end of the thirty (30) day timeframe, p1ge0n will terminate all services, the LICENSE will be forfeited, and the LICENSEE will destroy all copies of the SOFTWARE.

5       CONFIDENTIALITY

5.1          Except as otherwise set forth in this AGREEMENT, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“RECEIVING PARTY”) by the disclosing party (“DISCLOSING PARTY”) constitute the confidential property of the DISCLOSING PARTY (“CONFIDENTIAL INFORMATION”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the RECEIVING PARTY to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure.  Each party agrees to use the same standard of care to protect CONFIDENTIAL INFORMATION as it uses to protect its own similar confidential and proprietary information, but not less than a reasonable standard of care.  Except as authorized herein, the RECEIVING PARTY will (1) hold in confidence and not intentionally disclose any CONFIDENTIAL INFORMATION to third parties and (2) will not use CONFIDENTIAL INFORMATION for any purpose other than fulfilling its obligation and exercising its rights under this AGREEMENT.  The DISCLOSING PARTY recognizes that security breaches may happen and there can never be complete assurance that malicious actors will be prevented from accessing CONFIDENTIAL INFORMATION.

5.2          Any p1ge0n technology and any performance information relating to the SOFTWARE will be deemed CONFIDENTIAL INFORMATION without any further marking or further designation.

5.3          The RECEIVING PARTY may disclose CONFIDENTIAL INFORMATION to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the DISCLOSING PARTY than this Section 5 and that the RECEIVING PARTY remains responsible for compliance by them with the terms of this Section 5.

5.4          The RECEIVING PARTY’s confidentiality obligations will not apply to information which the RECEIVING PARTY can document: (1) was rightfully in its possession or known to it prior to receipt of the CONFIDENTIAL INFORMATION; (2) is or has become public knowledge through no fault of the RECEIVING PARTY; (3) is rightfully obtained by the RECEIVING PARTY from a third party without breach of any confidentiality obligation; or (4) is independently developed by employees of the RECEIVING PARTY who had no access to such information.

5.5          The RECEIVING PARTY may also disclose CONFIDENTIAL INFORMATION if required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the DISCLOSING PARTY).

5.6          The RECEIVING PARTY 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 RECEIVING PARTY the DISCLOSING PARTY will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

5.7          p1ge0n may identify LICENSEE as a customer when referring to lists of customers. Furthermore, p1ge0n may automatically extract and use LICENSEE’s data and information internally for the limited use of its research and analysis as may be necessary to enhance and improve the SOFTWARE and services it provides to its customers, provided always that any such retained data or information of LICENSEE shall be for internal use only and shall be used in a de-identified manner only.

6       MONITORING AND AUDITING

6.1          LICENSEE understands that the SOFTWARE is programmed to track the number of deployed copies of the SOFTWARE, authorized devices, users and other usage related data, and LICENSEE consents to such operations and shall not engage in any activity designed to circumvent or obstruct, or which has the effect of circumventing or obstructing, the SOFTWARE’s tracking capabilities.

6.2          LICENSEE grants to p1ge0n the right to monitor usage by all of its users and to audit its books, records and accounts, at p1ge0n’s expense, during LICENSEE’s normal business hours to verify compliance with this AGREEMENT, and LICENSEE agrees to make available to p1ge0n or its representatives any records pertaining to this AGREEMENT.

6.3          If any audit reveals that any additional amounts are owed in excess of five percent (5%) of the total fees paid during the audited time period, then such owed amounts will be paid immediately and the cost of such audit shall be reimbursed by LICENSEE.

7       WARRANTS AND REPRESENTATIONS

7.1          p1ge0n representations. p1ge0n warrants and represents that it is the copyright holder of the SOFTWARE and that granting the LICENSE to use the SOFTWARE is not in violation of any other agreement, copyright, or applicable statute. p1ge0n represents and warrants that p1ge0n has all necessary corporate or other authority or licenses to perform its obligations hereunder.

7.2          LICENSEE representations. The LICENSEE represents and warrants that: (a) the individual accepting this agreement, if accepting on behalf of a company, government, or other entity, has all necessary corporate or other authority to bind the entity which is the end-user of the SOFTWARE, (b) LICENSEE has all necessary corporate or other authority or licenses to perform its obligations hereunder.

8       MISCELLANEOUS

8.1          Term. The term of this AGREEMENT will begin upon acceptance and is perpetual.  This AGREEMENT will be terminated and the LICENSE forfeited where the LICENSEE has failed to comply with any of the terms of this AGREEMENT or is in breach of this AGREEMENT.  On termination of this AGREEMENT for any reason, p1ge0n services will be discontinued to the LICENSEE and the LICENSEE will destroy any copies of the SOFTWARE.

8.2          Governing law. The PARTIES to this AGREEMENT submit to the jurisdiction of the courts of the State of Ohio for the enforcement of this AGREEMENT or any arbitration award or decision arising from this AGREEMENT.  This AGREEMENT will be enforced or construed according to the laws of the State of Ohio.

8.3          If any term, covenant, condition, or provision of this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, it is the PARTIES’ intent that such provisions be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this AGREEMENT will in no way be affected, impaired, or invalidated as a result.

8.4          This AGREEMENT may be modified by p1ge0n, with notice provided to the LICENSEE by email, through the SOFTWARE, or through our website.  Together with notice, we will specify the effective date of the modifications.

8.5          This AGREEMENT does not create or imply any relationship in agency or partnership between p1ge0n and the LICENSEE.

8.6          Headings are inserted for the convenience of the PARTIES only and are not to be considered when interpreting this AGREEMENT. Words in the singular mean the plural and vice versa.

8.7          This AGREEMENT sets forth the entire understanding between the PARTIES with respect to the subject matter hereof, and merges and supersedes all prior agreements, discussions, and understandings, express or implied, concerning such matters.  This AGREEMENT shall take precedence over any additional or conflicting terms which may be contained in LICENSEE’s purchase order or p1ge0n’s order acknowledgement forms.