End User License Agreement

PLEASE READ THIS KOMODO SYSTEMS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE ACCESSING OR USING SOFTWARE (AS DEFINED BELOW) PROVIDED BY KOMODO SYSTEMS, INC. (“KOMODO”). IN THIS EULA, YOU ARE REFERRED TO AS “CUSTOMER.” BY ACCESSING OR USING THE SOFTWARE, CUSTOMER (a) AGREES AND CONSENTS TO BE BOUND BY THIS EULA; AND (b) REPRESENTS AND WARRANTS THAT CUSTOMER IS AUTHORIZED TO ENTER INTO THIS EULA AND, IF CUSTOMER IS ACTING ON BEHALF OF A BUSINESS ENTITY, THAT CUSTOMER IS AUTHORIZED TO BIND SUCH ENTITY. CUSTOMER AND KOMODO MAY EACH BE REFERRED TO HEREIN AS A “PARTY” OR COLLECTIVELY AS “PARTIES.” CUSTOMER ALSO AGREES NOT TO ACCESS OR USE KOMODO SOFTWARE WITHOUT PRIOR WRITTEN CONSENT IF CUSTOMER IS NOW, OR PLANS TO BECOME, A DIRECT COMPETITOR OF KOMODO.

 

1. DEFINITIONS

1. "Applicable Laws" refers to U.S. Federal and State data protection, processing, and/or privacy laws that apply to the Customer Data being processed and the processing activities hereunder.

2. "Customer Data" refers to any proprietary information, including network or infrastructure data, and Personal Data collected by Customer from a Data Subject that is stored in systems owned by Customer.

3. “Data Subject” refers to any individual whose Personal Data is gathered by, processed, or stored by Customer. A Data Subject is a retail customer of the Customer, such as an electric utility customer or Internet service subscriber.

4. “Hardware” means computing equipment provided by Komodo to Customer.

5. "Personal Data" refers to any information relating to a Data Subject (e.g., name, address, phone, IP address) as defined by Applicable Laws.

6. "Komodo Data" refers to any content, data, or other information arising out of, resulting from, or otherwise generated by Customer’s use of the Software, excluding Customer Data.

7. "Software" means the Komodo products and applications licensed to Customer under this EULA.

 

2. PRODUCTS AND SOFTWARE

2.1 Right to Access and Use. Subject to the terms and conditions of this EULA, Komodo grants Customer a revocable, non-exclusive, non-transferable, limited license to access, download, install, and use Komodo products and applications (“Software”) for internal business purposes on Customer's designated hardware. 

2.2 Acceptable Use. Customer shall not: (i) reverse engineer, decompile, disassemble, or create derivative works of the Software; (ii) attempt to derive the source code; (iii) defeat any license key; or (iv) use the Software for time-sharing or service bureau purposes. 

2.3 Updates. Komodo may automatically install patches, bug fixes, or updates to improve the Software. 

2.4 Hardware. The license includes the right to operate the Software on Hardware supplied by Komodo or Customer’s own compatible hardware.

 

3. DATA OWNERSHIP AND LICENSE

3.1 Komodo Data. Komodo owns all right, title, and interest in and to the Komodo Data, including all Intellectual Property (IP) Rights therein. 

3.2 Customer Data Ownership. Customer owns all right, title, and interest in and to the Customer Data, including all IP Rights therein. 

3.3 License to Komodo. Customer grants Komodo a nonexclusive, worldwide, royalty-free license during the Term to use Customer Data solely for the purpose of providing, maintaining, supporting, and improving the Software, and for generating aggregated, anonymized, and de-identified statistical data. 

3.4 Data Processing Addendum. To the extent Komodo processes Personal Data on behalf of Customer (e.g., during support or maintenance), the parties agree to be bound by the terms of the Data Processing Addendum (DPA) attached hereto as Appendix A.

 

4. EXPORT MATTERS

Customer acknowledges that the Software is subject to U.S. export control laws. Customer shall not export or re-export the Software in violation of such laws or to any U.S.-embargoed countries or denied persons.

 

5. SECURITY

5.1 Security Measures. Komodo maintains reasonable administrative, physical, and technical safeguards to protect Customer Data, including encryption and employee background checks. 

5.2 Reporting. If Komodo becomes aware of unlawful access to Customer Data stored on Komodo equipment (a “Security Incident”), Komodo will promptly notify Customer, investigate, and take steps to mitigate the effects.

 

6. THIRD PARTY PRODUCTS AND OPERATIONS

6.1 Third Party Products. Use of third-party applications is subject to the third party’s terms. Komodo has no liability for Customer’s use of Third-Party Products. 

6.2 Partner Relationships. If an authorized third party (each, a “Partner”) provides billing, installation, or integration services related to the Software, such Partner acts solely as an independent contractor and not as an agent of Komodo. Komodo is not responsible for any acts, omissions, or representations made by Partners. Customer acknowledges that Komodo’s obligations under this EULA apply only to Komodo’s direct deliverables and not to Partner-provided services.

6.3 Remote Access. From time to time, Customer may grant Komodo temporary remote access to Customer’s on-premise Hardware to assist with support. Such access is limited to "View-Only" and is subject to the restrictions in Appendix A.

6.4 Installation and Acceptance. Komodo will use reasonable efforts to assist Customer in installing and configuring the Software. Installation is deemed complete when the Software is successfully installed on the designated system and verified by Customer. Completion of installation shall constitute acceptance of the EULA.

6.5. Maintenance and Support. Ongoing software maintenance, technical support, and updates may be made available under a separate Software Maintenance Agreement (“SMA”). Unless an SMA is executed, Komodo has no obligation to provide maintenance or support beyond the initial installation.

 

7. SUBSCRIPTION TERM AND FEES

7.1 Term. This EULA applies to Komodo Software, which operates on a subscription basis. The initial term begins upon delivery and continues for the period specified in the purchase documentation. Subscriptions automatically renew unless notice of non-renewal is provided at least sixty (60) days prior. Komodo reserves the right to modify subscription pricing with at least sixty (60) days’ advance notice before any renewal.

7.2 Fees. Payments are due within thirty (30) days of the invoice date. Late payments accrue interest at 1.5% per month. All fees are exclusive of applicable sales, use, property, or excise taxes, duties, or levies, which are the sole responsibility of Customer.

 

8. CHANGES TO THIS EULA

Komodo may modify this EULA by providing an updated version on its website. Modifications will become effective immediately. Customer’s continued use of the Software shall constitute acceptance of the revised terms. If a modification materially reduces functionality or increases obligations, Customer may terminate without penalty within thirty (30) days of the update.

 

9. LIMITATIONS OF LIABILITY

9.1 Disclaimer. CUSTOMER USES THE SOFTWARE AT ITS SOLE RISK. THE SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE.” KOMODO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. KOMODO DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, MALWARE-FREE, OR COMPATIBLE WITH THIRD-PARTY SYSTEMS. KOMODO IS NOT LIABLE FOR THE ACTIONS OF THIRD PARTIES AND IS RELEASED FROM ALL CLAIMS ARISING FROM DISPUTES BETWEEN CUSTOMER AND ANY THIRD PARTIES. 

9.2 Limitation. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KOMODO IS NOT LIABLE FOR LOST PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM THIS AGREEMENT, REGARDLESS OF CAUSE OR THEORY OF LIABILITY. EXCEPT FOR (i) INDEMNIFICATION OBLIGATIONS, AND (ii) BREACH OF SECTION 2.2, KOMODO’S TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SOFTWARE AT THE TIME THE CLAIM AROSE.

 

10. INDEMNIFICATION

10.1 By Customer. Customer shall defend, indemnify, and hold Komodo, and its directors, officers, employees, successors, and assigns, harmless against all losses, settlements, and expenses (including legal fees and costs of investigation) arising from third-party claims resulting from: (a) Customer’s breach of this EULA or applicable law, including Customer’s failure to comply with the requirements in Section 2; (b) inaccuracy or misuse of Customer or Komodo Data; or (c) claims by Customer’s prospective, current, or former employees or contractors. Komodo will promptly notify Customer of any claim; provided, however, that failure to provide such notice will not relieve Customer of its indemnity obligations unless Customer is materially prejudiced by such failure. Customer shall control the defense. However, Customer may not settle any claim without Komodo’s prior written consent if the settlement requires an admission of fault, imposes any obligation on Komodo, or has a judicially binding effect on Komodo. Komodo may participate with its own counsel at its own expense. 

10.2 By Komodo. Komodo shall defend, indemnify, and hold Customer harmless against all losses and expenses arising from third-party claims alleging that the Software infringes a valid intellectual property right. Komodo will have no liability if the claim arises from: (a) Customer’s misuse or modification of the Software; (b) Customer's failure to use updates provided by Komodo; or (c) the combination of the Software with third-party products. If an infringement claim arises, Komodo may, at its option: (i) obtain the right for Customer to continue use; (ii) replace or modify the Software to be non-infringing; or (iii) terminate this EULA and refund any prepaid, unused fees.

 

11. TERM AND TERMINATION

11.1 Term. This EULA shall commence on the date Customer accepts it and shall continue in full force and effect until terminated pursuant to the provisions hereof (the “Term”).

11.2 Right to Terminate. Either party may terminate immediately for material breach if not cured within 30 days. Customer may terminate for convenience upon 60 days’ notice. 

11.3 Effect of Termination. Upon termination, Customer shall cease using the Software and shall delete or destroy all copies of the Software (including any Documentation or other information related to the Software provided by Komodo) and, upon request, shall deliver to Komodo a certification in writing that Customer has deleted or destroyed all copies of the Software and Documentation, and ceased all use of the Software, Komodo Data, and Customer Data. Komodo shall delete Customer Data in accordance with Section 3.3 and Appendix A.

 

12. GENERAL TERMS

12.1 Governing Law. The laws of the State of Utah govern this EULA. Any dispute shall be resolved by binding arbitration in Salt Lake City, Utah. 

12.2 Force Majeure. Komodo shall not be liable for any delay or failure to perform due to causes beyond its reasonable control, including acts of God, natural disasters, strikes, labor disputes, supply shortages, war, terrorism, or governmental action.

12.3 Miscellaneous. This EULA constitutes the entire agreement between Customer and Komodo, superseding all prior communications. Amendments must be in writing and signed by both parties. No licenses are granted by implication or estoppel. Komodo’s failure to enforce a right does not constitute a waiver, and all remedies are cumulative. If any provision is held invalid, the remainder continues in full force.

 

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DATA PROCESSING ADDENDUM (DPA)

 

This Data Processing Addendum (“DPA”) forms part of the EULA between Komodo (referred to below as “Processor”) and Cutomer (referred to below as “Controller”).

 

1. SCOPE AND ROLES

1.1. Roles. The Parties acknowledge that for the purposes of Applicable Laws, Customer is the Controller and Komodo is the Processor of Personal Data.

1.2. Nature of Processing. Komodo does not host or store Customer’s Personal Data as part of its standard Software delivery. Processing is strictly limited to transient, incidental access to Customer’s on-premises systems for the sole purpose of providing maintenance, technical support, and software updates ("Permitted Purpose").

1.3. Data Subjects. The Personal Data concerns the Controller’s subscribers (e.g., utility customers, internet subscribers).

 

2. PROCESSOR OBLIGATIONS

Komodo shall process Personal Data only on documented instructions from the Controller (which include the Agreement and this DPA), unless required to do so by Applicable Law, and ensure that persons authorized to process the Personal Data (e.g., Komodo support engineers) are under an appropriate obligation of confidentiality. Komodo will implement and maintain technical and organizational measures to protect Personal Data against unauthorized access, with a focus on remote support sessions. When accessing Controller’s systems remotely, Komodo shall not download, copy, or retain Personal Data or create any transient copies of data on its own systems unless explicitly authorized.

 

3. SUB-PROCESSING

3.1. Authorization. Controller grants Komodo general authorization to engage third-party sub-processors (e.g., cloud infrastructure for ticketing, remote desktop tools) to support the Permitted Purpose.

3.2. Liability. Komodo shall remain fully liable to the Controller for the performance of any sub-processor's obligations.

 

4. ASSISTANCE TO CONTROLLER

4.1. Data Subject Rights. Considering the nature of the processing (incidental access), Komodo shall assist the Controller by appropriate technical measures, insofar as possible, for the fulfillment of the Controller’s obligation to respond to requests for exercising Data Subject rights (e.g., requests to delete or correct data).

4.2. Security Incidents. If Komodo becomes aware of any unlawful access to Customer Data stored on Komodo Hardware or Software resulting in loss or unauthorized disclosure or alteration of Customer Data (each, a “Security Incident”), Komodo shall notify Customer without undue delay (and in no event later than 72 hours) after becoming aware of the breach.

 

5. AUDITS
Upon reasonable request and subject to confidentiality obligations, Komodo shall make available to Controller information necessary to demonstrate compliance with this DPA. If Controller is a regulated utility requiring an onsite audit, such audits shall be conducted during regular business hours, with reasonable advance notice, and at Controller's expense.

 

6. RETURN OR DELETION OF DATA
Upon termination of the Agreement or upon completion of the specific support task requiring access, Komodo shall delete any Personal Data incidentally captured or stored, unless Applicable Law requires storage.