THIS BANK CONNECT LICENSE AGREEMENT (the “Agreement”) is entered into as of the date first downloaded (the “Effective Date”) by and between KOXA CORP. (“KOXA”), and you (“YOU”). By downloading, installing or otherwise using the Koxa Services (ad defined below), You, on behalf of your company (the “Company”) agree to be bound by the terms and conditions contained herein. If You do not agree with the terms and conditions, You are not authorized to install or use the Koxa Services. You represent and warrant that You have the authority to bind such company or entity to the terms of this License Agreement, in which case the terms “You”, “Your” and the “Company” each refer to both You and your company. If You do not have such authority, or if You or Your company does not agree with the terms of this License, then neither You nor the Company has the right to use the Koxa Services.
In consideration of the representations and promises set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. API LICENSE.
The terms and conditions of this Agreement apply to Koxa’s application programming interface (the “API”) that is designed for use with Koxa’s proprietary access management platform (the “Koxa Services”). The API is designed to allow Company to connect and interface the Company’s third-party accounting software that is determined by Koxa to be compatible with the Koxa Services (“Approved Accounting Software”) with the Company’s bank account maintained by a bank that is determined by Koxa to be compatible with the Koxa Services (“Approved Bank”). Promptly after the Effective Date, Koxa will provide Company with the access tokens and such other access protocols as are necessary to access and use the features and functions of the API and Koxa Services, provided that the Company may be required to enter into a separate license agreement with Koxa (and such separate license agreement shall supersede and take precedence over the terms herein). During the Initial Term (as defined in Section 8 below) and any subsequent renewal terms, and subject to Company’s compliance with the terms and conditions of this Agreement, Koxa grants Company a non-exclusive, non-transferable, non-sublicensable, royalty-free right to use the API solely for its internal business purposes and to test, evaluate and provide feedback to Koxa. Company agrees that it is solely responsible for obtaining the required consent from its Approved Bank to connect the API to its bank account(s) and will indemnify, defend, and hold harmless Koxa against any claim brought by the Approved Bank as a result of Company’s failure to secure such consent. Koxa will not be liable for any inability of Company to access or use the API and/or Koxa Services as a result of Company’s failure to secure such required consent or otherwise take steps necessary to allow for the connection or interfacing between the API and Company’s bank account.
2. RESTRICTIONS.
Company may not copy the API without Koxa’s prior written permission. Company may not use the API, except for the purposes expressly provided for in this Agreement. Company shall not, nor shall it permit, assist or encourage any third party to: (a) modify, adapt, alter, translate or create derivative works from the API; (b) sublicense, lease, rent, or loan the API, or otherwise transfer the API to any third party; (c) remove, obscure or alter Koxa’s copyright notices, trademarks or other proprietary rights notices affixed to or contained within the API; (d) reverse engineer or attempt to reconstruct, identify or discover any underlying ideas, underlying user interface techniques or algorithms related to the API; (e) access or use the API or attempt to access or use the API with any accounting software other than an Approved Accounting Software or with a bank account maintained by a bank other than an Approved Bank; or (f) otherwise exercise rights to the API except as expressly allowed by this Agreement. Koxa reserves the right to immediately suspend access to the API if Company breaches any terms of this Agreement.
3. OWNERSHIP.
As between the parties, the API, the Koxa Services, and all worldwide intellectual property rights and proprietary rights to the foregoing, are the exclusive property of Koxa and its suppliers. Koxa and its suppliers reserve all rights in and to the API and Koxa Services not expressly granted to Company in this Agreement, and no other licenses or rights are granted by implication, estoppel or otherwise.
4. COMPANY CONTENT.
“Company Content” means any and all data, statistics, texts, files, transactions and other information that are provided, imported or otherwise used by or on behalf of Company in connection with its use of the API. As between Company and Koxa, Company will at all times remain the exclusive owner of such Company Content. Company hereby grants to Koxa a non-exclusive, worldwide, royalty-free and fully paid license (i) to use the Company Content as necessary to provide the API and Koxa Services to Company and (ii) to use aggregated and anonymized Company Content (A) to improve the API, Koxa Services and Koxa’s related product and service offerings; (B) to create new products and services relating to the Koxa Services (including analytics services such as providing benchmarking); and (C) to generate and disclose statistics regarding use of the API and Koxa Services, provided, however, that no Company-only statistics or statistics that identify a specific individual will be disclosed to third parties without Company’s consent. Koxa may store certain financial data, such as bank account identifiers and payment instruction metadata for any payments initiated through the Koxa Services. Any such data is and will be encrypted and will not be shared with any party other than Company and Company’s Approved Bank. Company acknowledges and agrees that its Approved Banks’s access to and use of any Company Content is subject to the applicable agreement between Company and such Approved Bank.
5. FEEDBACK.
In exchange for the licenses granted to Company to use such software, Company agrees to test, use, and evaluate the API in live operations, and to promptly report to Koxa, either orally or in writing, any errors, problems, defects, or suggestions for changes and improvements to the API (collectively, “Feedback”). Company hereby grants to Koxa a non-exclusive, royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual right and license to use or incorporate any such Feedback in and in connection with the API, Koxa Services, other Koxa products and services, and Koxa’s business. Further, Company acknowledges and agrees that Feedback may be used by Koxa in Koxa’s development of and be incorporated into a version of the API Koxa may make available for commercial distribution and/or through partnerships with Approved Banks (“Future Commercial Release”) or any other software or intellectual property created by Koxa. Without limiting the foregoing, Koxa may incorporate Feedback into its products and services and Company will gain no rights in such products or services by virtue of having disclosed Feedback. Company agrees and acknowledges that the products and services incorporating such Feedback will be the sole and exclusive property of Koxa, and Company will gain no right, title or interest in or to the API, Koxa Services, or any Future Commercial Release by virtue of Company’s provision of Feedback to Koxa or for any other reason. Koxa has no obligation to create, distribute or otherwise offer a Future Commercial Release, provided, however, Company understands and agrees that any such Future Commercial Release may only be available to Company through an Approved Bank and may contain functions and functionality, and perform in a manner significantly different from the current version of the API. Accordingly, Company acknowledges that any research or development performed, or business plans made, by Company regarding or in reliance upon the API are done entirely at Company’s own risk.
6. INDEMNITY BY COMPANY.
Company agrees to indemnify, hold harmless and, at Koxa’s option, defend Koxa, its officers, directors, employees and agents from and against any losses, liabilities, costs (including reasonable attorney’s fees) or damages resulting from any claim by any third party arising from Company Content, a breach by Company of its obligations under this Agreement, Company’s negligence or willful misconduct, or Company’s failure to comply with applicable law; provided that, in the event Koxa elects to require Company to provide defense of any such third-party claim, Company shall not settle such claim unless the settlement completely and forever releases Koxa with respect thereto or unless Koxa provides its prior, written consent to such settlement.
7. INDEMNITY BY KOXA.
Koxa agrees to indemnify, hold harmless and, at Company’s option, defend Company, its officers, directors, employees and agents from and against any losses, liabilities, costs (including reasonable attorney’s fees) or damages resulting from any claim or allegation by any third that the API infringes any copyrights or U.S. patents published as of the Effective Date or misappropriate any trade secrets, or Koxa’s negligence, willful misconduct or failure to comply with applicable law; provided that, in the event Company elects to require Koxa to provide defense of any such third-party claim, Koxa shall not settle such claim unless the settlement completely and forever releases the Company with respect thereto or unless the Company provides its prior, written consent to such settlement. Notwithstanding the foregoing, Koxa will have no obligation under this subsection or otherwise with respect to any claim based upon or related to (i) any unauthorized use of the API; (ii) any unapproved modification of the API by Company or its authorized agents or contractors; or (iii) the combination, connection, or integration with software or hardware not provided by Koxa (including, without limitation the Approved Accounting Software or the software, hardware, or services of the Approved Bank). This subsection states Koxa’s entire liability and Company’s sole and exclusive remedy for infringement claims and actions.
8. TERM; TERMINATION.
This Agreement is effective on the Effective Date and shall continue for one (1) year (the “Initial Term”) unless sooner terminated in accordance with this Section 8. Following the Initial Term, this Agreement will automatically renew for successive one (1) year renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party gives thirty (30) days’ notice of its intention not to renew this Agreement to the other Party. Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof. The Company may terminate this Agreement for any reason upon providing Koxa thirty (30) days’ notice. Upon the expiration or any termination of this Agreement, the license granted to Company will terminate, any amounts owed to Koxa under this Agreement will become immediately due and payable, and Company, at its expense, will promptly return all copies of the API and all Confidential Information in its possession to Koxa. The provisions of Sections 2 through 12 shall survive termination or expiration of this Agreement for any reason. Following the termination of this Agreement for any reason, Koxa shall promptly destroy all copies of Company Content in its possession and confirm, upon Company’s request in writing, that such Company Content has been destroyed.
9. CONFIDENTIALITY.
Company acknowledges that the API is a commercially valuable asset which constitutes a trade secret of Koxa and that it contains Confidential Information proprietary to Koxa. For purposes of this Agreement, “Confidential Information” means the API, all information provided by Koxa about the API, and all information provided by either party (“Disclosing Party”) to the other party (“Receiving Party”) that is clearly marked or identified as confidential or disclosed under circumstances that would lead a reasonable person to believe such information is confidential, except for information that: (a) is or will be in the public domain (other than through the Receiving Party’s unauthorized disclosure); or (b) is required by applicable laws or a valid order of a court or other governmental body having jurisdiction, provided that the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, a protective order preventing or limiting the disclosure. Receiving Party shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than those set forth in this Agreement. Receiving Party agrees that it, including its employees, officers, and agents, if any, shall treat all Confidential Information with the same degree of care as it accords to its own confidential information which, in no event, shall be less than reasonable care and shall not disclose, sell, transfer, publish, copy, display or otherwise make the Confidential Information available, or any part thereof in any form, to any person or entity not a party to this Agreement. Receiving Party shall take all reasonable precautions to ensure fulfillment of this confidentiality and nondisclosure obligations and agrees to immediately notify Disclosing Party of any unauthorized use, copying and/or disclosure of the Confidential Information, as well as take such actions as are necessary to cease and prevent any further unauthorized use, copying and/or disclosure.
10. DISCLAIMER.
THE API AND KOXA SERVICES PROVIDED BY KOXA TO COMPANY IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. KOXA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE API AND KOXA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. KOXA DOES NOT WARRANT THAT THE API OR KOXA SERVICES WILL OPERATE WITHOUT INTERRUPTION OR ERROR, THAT THE API OR KOXA SERVICES ARE FREE FROM DEFECTS, THAT ANY TRANSACTIONS INITIATED THROUGH THE API OR THE KOXA SERVICES WILL BE ACCURATE OR COMPLETE, THAT KOXA WILL MAINTAIN ANY DATA WITHOUT LOSS OR THAT ANY APPROVED BANK WILL ALLOW OR CONTINUE TO ALLOW ACCESS TO THE API. KOXA DOES NOT MAKE ANY WARRANTY AS TO THE OUTPUT THAT MAY BE OBTAINED FROM USE OF THE API. COMPANY ACKNOWLEDGES THAT NO WARRANTIES ARE MADE BY ANY OF KOXA’S LICENSORS OR SUPPLIERS. KOXA RESERVES THE RIGHT TO CHANGE, MODIFY, OR ALTER THE API WITHOUT NOTICE, AT ANY TIME.
11. LIMITATION OF LIABILITY.
IN NO EVENT WILL KOXA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE API OR THIS AGREEMENT, EVEN IF KOXA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF KOXA ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE API, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID BY COMPANY TO KOXA DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. KOXA ALSO DISCLAIMS ALL LIABILITY OF ANY KIND OF KOXA’S SUPPLIERS AND LICENSORS.
12. MISCELLANEOUS.
This Agreement will be interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles. The parties hereby expressly consent to the personal jurisdiction and venue in the state and federal courts located in New York County, New York, for any lawsuit arising from or related to this Agreement. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Company may not assign any of its rights or obligations under this Agreement without the prior written consent of Koxa. Any attempted assignment or transfer in violation of the foregoing will be void. Koxa shall have the right to assign this Agreement without Company’s consent. Any notice required or permitted by this Agreement will be in writing and will be deemed effective upon receipt, when sent by confirmed email or other electronic transmission or when delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as such party may specify in writing. In case any provision of the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. This Agreement may be amended or modified only upon the mutual written consent of Koxa and Company. No failure of either party to enforce any of its rights under this Agreement will act as a waiver of those rights. The parties acknowledge that any use or disclosure of the Confidential Information by a Receiving Party in violation of or in any manner inconsistent with this Agreement would cause substantial and irreparable injury to the Disclosing Party, and that the Disclosing Party’s remedies at law will not be adequate. Accordingly, the parties agree that a Disclosing Party shall be entitled to injunctive relief with respect to any breach, or threatened breach of the other’s covenants in this Agreement by a Receiving Party, and that such right shall be in addition to, and not in limitation of, any other rights or remedies to which either party is or may be entitled at law or equity. This Agreement constitutes the entire understanding and agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements and understandings, whether written or oral. If any action is brought by either party against the other in connection with or arising out of this Agreement, the substantially prevailing party shall be entitled to recover from the other party its attorneys’ fees incurred in connection with the prosecution or defense of such action.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.