RECITALS 

WHEREAS, Kanerika has developed and owns certain proprietary software platforms, tools, and accelerators, which may include, among others, Kanerika’s FLIP platform and its automated migration accelerators, as further identified in the applicable Order Form; 

WHEREAS, Client desires to obtain, and Kanerika desires to grant, a license to use such Licensed Materials on the terms set forth in this Agreement and the applicable Order Form(s); and 

WHEREAS, the specific commercial structure of the license, including whether it is provided as part of a services engagement, as a standalone deliverable, or as a combination of both, together with fees, term, and scope, is intended to vary by engagement and is therefore addressed in the applicable Order Form rather than fixed in the body of this Agreement; 

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows: 

ARTICLE 1: DEFINITIONS 

1.1  “Authorized Users” means Client’s employees, and contractors under written confidentiality obligations at least as protective as this Agreement, who are identified in the applicable Order Form and require access to the Licensed Materials for Client’s internal business purposes. 

1.2  “Client Data” means data, content, and materials submitted by or on behalf of Client to, or processed using, the Licensed Materials. 

1.3  “Documentation” means Kanerika’s user guides, specifications, and technical materials made generally available to Client describing the use of the Licensed Materials. 

1.4  “Licensed Materials” means any proprietary software platform, tool, module, accelerator, or methodology owned by Kanerika and identified in the applicable Order Form, which may include (without limitation) Kanerika’s FLIP platform and its modules, and Kanerika’s automated migration accelerators for data, analytics, and RPA workloads, together with all related Documentation, templates, and configurations provided by Kanerika under this Agreement, excluding Client Data. 

1.5  “Order Form” means a Kanerika order document (whether entitled “Order Form,” “Order,” or similar) executed or approved in writing by both Parties that references this Agreement and specifies the Licensed Materials, License Model, scope, fees, term, and other commercial terms applicable to a specific license granted under this Agreement. 

1.6  “Services Engagement” means a separate statement of work, master services agreement, or similar arrangement between the Parties under which Kanerika provides consulting, implementation, or migration services to Client. 

1.7  Capitalized terms not otherwise defined in this Article 1 have the meanings given elsewhere in this Agreement. 

ARTICLE 2: LICENSE GRANT 

2.1  General Grant. Subject to Client’s compliance with this Agreement and payment of any fees specified in the applicable Order Form, Kanerika grants Client a limited, non-exclusive, non-transferable, non-sublicensable (except as expressly permitted) license during the Term to access and use the Licensed Materials identified in the Order Form, solely for Client’s internal business purposes. 

2.2  License Model. The commercial structure of the license, namely whether access to the Licensed Materials is (a) provided at no separate charge as a component of a Services Engagement (a “Bundled License”), (b) licensed as a standalone deliverable independent of any Services Engagement (a “Standalone License”), or (c) provided with a base scope of Bundled access where additional or extended use requires a separate fee (a “Hybrid License”), is as designated in the applicable Order Form. If the Order Form does not designate a License Model, the license is deemed a Bundled License limited to the scope, duration, and Authorized Users of the associated Services Engagement. 

2.3  Marketplace Transactions. If Client procures any Licensed Materials (such as Kanerika’s FLIP platform) through the Microsoft Azure Marketplace or a similar third-party marketplace, the marketplace’s standard terms of transaction govern that specific transaction, and this Agreement applies to Client’s use of the remaining Licensed Materials and to any access to marketplace-listed Licensed Materials provided directly by Kanerika outside such marketplace, except as otherwise stated in the applicable Order Form. 

2.4  Authorized Users. Access to the Licensed Materials is limited to Authorized Users. Client is responsible for its Authorized Users’ compliance with this Agreement. 

2.5  Restrictions. Client shall not, and shall not permit any third party to: (a) copy, modify, translate, or create derivative works of the Licensed Materials, except as expressly permitted in the Documentation; (b) reverse engineer, decompile, or disassemble any software component of the Licensed Materials; (c) sublicense, resell, distribute, rent, lease, or otherwise make the Licensed Materials available to any third party; (d) remove or obscure any proprietary notices; (e) use the Licensed Materials to build or support a product or service competitive with the Licensed Materials; or (f) use the Licensed Materials beyond the scope, volume, or Authorized User count specified in the applicable Order Form. 

2.6  Reservation of Rights. All rights not expressly granted to Client in this Agreement are reserved by Kanerika. 

ARTICLE 3: INTELLECTUAL PROPERTY OWNERSHIP 

3.1  Kanerika Ownership. As between the Parties, Kanerika owns and retains all right, title, and interest, including all intellectual property rights, in and to the Licensed Materials and all derivative works, improvements, and configurations thereof, whether or not delivered, configured, or customized in connection with a Services Engagement. No transfer of ownership of the Licensed Materials is intended or effected by this Agreement, any Order Form, or any Services Engagement, notwithstanding any general deliverable-ownership or work-for-hire language in a statement of work, unless that statement of work expressly references this Section 3.1 by name and states an intent to transfer ownership of the Licensed Materials. 

3.2  Client Data. Client retains all right, title, and interest in Client Data. Kanerika obtains no ownership interest in Client Data and will use Client Data solely to provide the Licensed Materials and as otherwise authorized in writing by Client. 

3.3  Feedback. If Client provides suggestions, ideas, or feedback regarding the Licensed Materials, Kanerika may use such feedback for any purpose without restriction or obligation to Client. 

ARTICLE 4: FEES AND PAYMENT 

4.1  Fees, if any, for the license granted under this Agreement are as set forth in the applicable Order Form. 

4.2  Except as otherwise stated in the Order Form, fees are non-refundable and stated exclusive of applicable taxes, which are Client’s responsibility. 

4.3  Undisputed amounts not paid when due accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law. 

ARTICLE 5: TERM AND TERMINATION 

5.1  Term. This Agreement is effective as of the Effective Date and continues for the term stated in the applicable Order Form (the “Term”). Where the license is a Bundled License, the Term is coextensive with the term of the associated Services Engagement. Where the license is a Standalone License, or the extended-use component of a Hybrid License, the Term is as stated in the Order Form and automatically renews for successive periods of equal length unless either Party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Term, or as otherwise stated in the Order Form. 

5.2  Termination for Cause. Either Party may terminate this Agreement or the applicable Order Form on written notice if the other Party materially breaches this Agreement and fails to cure that breach within thirty (30) days of written notice describing the breach. 

5.3  Effect of Termination. On expiration or termination, Client’s license to the Licensed Materials immediately ends, and Client shall cease all use of, and, at Kanerika’s request, return or destroy, the Licensed Materials and all copies, except that Client may retain copies solely as required for archival, regulatory, or legal-compliance purposes, subject to continuing confidentiality obligations. 

5.4  Survival. Articles 3 (Intellectual Property Ownership), 4 (Fees and Payment, as to amounts owed), 6 (Confidentiality), 8 (Warranties and Disclaimer), 9 (Indemnification), 10 (Limitation of Liability), and 12 (General Provisions) survive expiration or termination of this Agreement.

ARTICLE 6: CONFIDENTIALITY 

6.1  “Confidential Information” means non-public information disclosed by either Party that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including the Licensed Materials, Client Data, and the terms of any Order Form. 

6.2  The receiving Party shall use Confidential Information solely to exercise its rights and perform its obligations under this Agreement, protect it using at least the same degree of care it uses for its own confidential information of similar nature (and no less than a reasonable degree of care), and disclose it only to employees, contractors, and advisors with a need to know who are bound by confidentiality obligations at least as protective as this Article. 

6.3  These obligations do not apply to information that the receiving Party can show is or becomes public through no fault of the receiving Party, was rightfully known to it before disclosure, is rightfully received from a third party without confidentiality restriction, or is independently developed without use of the disclosing Party’s Confidential Information, or that is required to be disclosed by law or legal process, provided the receiving Party gives reasonable prior notice where legally permitted.

ARTICLE 7: DATA PROTECTION AND SECURITY 

7.1  Kanerika maintains an information security program consistent with its ISO 27001 and ISO 27701 certifications and SOC 2 attestation, and separately maintains an ISO 9001-certified quality management system. Kanerika implements reasonable administrative, technical, and physical safeguards designed to protect Client Data processed through the Licensed Materials. 

7.2  To the extent Client Data includes personal data subject to applicable data protection law, the Parties shall execute a data processing addendum addressing the applicable requirements, which will be incorporated by reference into the applicable Order Form. 

ARTICLE 8: WARRANTIES AND DISCLAIMER 

8.1  Limited Warranty. Kanerika warrants that the Licensed Materials will materially conform to the then-current Documentation when used as authorized under this Agreement. Client’s sole and exclusive remedy, and Kanerika’s entire liability, for breach of this warranty is prompt correction of the non-conformity by Kanerika. 

8.2  Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 8.1, THE LICENSED MATERIALS ARE PROVIDED “AS IS,” AND KANERIKA DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. 

ARTICLE 9: INDEMNIFICATION 

9.1  By Kanerika. Kanerika will defend Client against third-party claims alleging that the Licensed Materials, used as authorized under this Agreement, infringe that third party’s intellectual property rights, and will indemnify Client for damages finally awarded, provided Client promptly notifies Kanerika of the claim, gives Kanerika sole control of its defense and settlement, and provides reasonable cooperation at Kanerika’s expense. If the Licensed Materials become, or in Kanerika’s opinion are likely to become, the subject of such a claim, Kanerika may, at its option, procure the right for Client to continue use, replace or modify the Licensed Materials to be non-infringing, or terminate the affected license and refund prepaid, unused fees. 

9.2  Exclusions. Kanerika has no obligation under Section 9.1 for claims arising from: (a) modification of the Licensed Materials by anyone other than Kanerika; (b) combination of the Licensed Materials with products or services not provided by Kanerika; or (c) use of the Licensed Materials outside the scope authorized under this Agreement. 

9.3  By Client. Client will indemnify Kanerika against third-party claims arising from Client Data or Client’s breach of Section 2.5 (Restrictions) or applicable law. 

ARTICLE 10: LIMITATION OF LIABILITY 

10.1  EXCEPT FOR (A) BREACHES OF ARTICLE 2 (LICENSE GRANT) OR ARTICLE 6 (CONFIDENTIALITY), (B) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 9, OR (C) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, OR DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

10.2  EXCEPT FOR THE CARVE-OUTS IN SECTION 10.1, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CLIENT TO KANERIKA UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

ARTICLE 11: COMPLIANCE; EXPORT CONTROL 

11.1  Client shall comply with all applicable laws in its use of the Licensed Materials, including United States export control and economic sanctions laws, and shall not export, re-export, or transfer the Licensed Materials to any restricted country, entity, or individual in violation of such laws. 

ARTICLE 12: GENERAL PROVISIONS 

12.1  Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship. 

12.2  Assignment. Neither Party may assign this Agreement without the other Party’s prior written consent, except that either Party may assign this Agreement without consent to a successor in connection with a merger, acquisition, or sale of substantially all of its assets. Kanerika may assign this Agreement to an affiliate. 

12.3  Notices. Notices under this Agreement must be in writing and delivered to the addresses specified in the applicable Order Form, and are deemed given upon receipt. 

12.4  Force Majeure. Neither Party is liable for any delay or failure to perform resulting from causes beyond its reasonable control. 

12.5  Entire Agreement; Order of Precedence. This Agreement, together with all Order Forms, constitutes the entire agreement between the Parties regarding the Licensed Materials and supersedes all prior or contemporaneous agreements on that subject matter. If an Order Form conflicts with the body of this Agreement, the Order Form governs solely as to commercial terms (fees, term, scope, and Authorized Users); this Agreement governs all other matters. 

12.6  Amendment. This Agreement may be amended only by a written instrument signed by both Parties, or by a mutually executed Order Form. 

12.7  Severability. If any provision of this Agreement is held unenforceable, the remaining provisions remain in full force and effect. 

12.8  No Waiver. No failure or delay by either Party in exercising any right under this Agreement operates as a waiver of that right. 

12.9  Governing Law and Venue. This Agreement is governed by the laws of the State of Texas, without regard to its conflict of laws principles. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Travis County, Texas. 

12.10  Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, including by electronic signature, each of which is deemed an original and all of which together constitute one instrument.