1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer with remote access to the Company's Koshee Protect application, to be hosted and operated on Customer's computer servers (the "Application").
1.2 As part of the registration process, Customer will identify an administrative username and password for Customer's company account ("Access Credentials"). Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.
1.3 Customer will use reasonable efforts to prevent any unauthorized use of the Application and immediately notify Company in writing of any unauthorized use that comes to Customer's attention. If there is unauthorized use by anyone who obtained access to the Application, directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Company to prevent or terminate unauthorized use of the Application.
2.1 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know- how or algorithms relevant to the Application or any software, documentation or data related to the Application ("Software"); (b) modify, translate, or create derivative works based on the Application or any Software (except to the extent expressly permitted by Company or authorized within the Application); (c) use the Application or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) remove any proprietary notices or labels; (e) rent, lease, or otherwise permit third parties to use the Application; (f) use the Application for any benchmarking activity or in connection with the development of any competitive product; (g) circumvent or disable any security or other technological features or measures of the Application; or (h) interfere with or disrupt the integrity or performance of the Application or access, copy, download, delete or damage any third-party data contained therein, or attempt to gain unauthorized access to the Application or any related systems or networks.
2.2 Customer represents, covenants, and warrants that Customer will use the Application only in compliance with this Agreement, Company's standard published policies then in effect, any documentation, and all applicable laws and regulations, including without limitation applicable laws and regulations regarding surveillance, data subject notice and consent, and/or biometric data privacy. Customer is solely responsible for determining any applicable legal or regulatory obligations in connection with its use of the Application, including without limitation publishing any legally required notices and/or obtaining any legally required consent from data subjects. Although Company has no obligation to monitor Customer's use of the Application, Company may do so and may prohibit any use of the Application it believes may be (or alleged to be) in violation of the foregoing.
2.3 Customers understands and acknowledges that certain data collected, stored, and otherwise processed by the Application may be interpreted under certain states' laws as the collection, storage, and processing of biometric identifiers and/or biometric information (collectively, "Biometrics"), including without limitation the Illinois Biometric Information Privacy Act ("BIPA"). Customer's obligation to comply with all applicable laws and regulations in its use of the Application expressly extends to biometric data privacy laws, including without limitation BIPA, to the extent applicable. Customer is solely responsible for publishing, and warrants that it will publish to the extent applicable, any legally required notices or policies, and is solely responsible for obtaining, and warrants that it will obtain to the extent applicable, all necessary data subject consents, as may be required by applicable biometric data privacy laws, including without limitation BIPA, including with respect to any transfers of Application data from Customer to the Company.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Application, including, without limitation, modems, hardware, servers, software, operating systems, networking, cameras, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment and Access Credentials and will be responsible for all access to the Application using the Customer's Access Credentials regardless of Customer's actual knowledge.
2.5 If Customer has violated, or Company has a reasonable basis to suspect that Customer has violated, the restrictions contained in this Section 2 or Section 11, Company may suspend Customer's access to the Application without notice until Customer can demonstrate that its use of the Application is in full compliance with this Agreement.
2.6 The parties shall work together in good faith to issue at least one mutually agreed upon press release within 60 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.
3.1 Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business ("Proprietary Information"). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Application. Proprietary Information of Customer includes non-public data provided by Customer to Company through the Application or as part of the Services ("Customer Data"). The Receiving Party agrees: (a) to take reasonable precautions to protect such Proprietary Information; and (b) not to use (except in performance of a party's rights or obligations under this Agreement) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any Proprietary Information after 5 years following the disclosure thereof or any Proprietary Information that the Receiving Party can document: (i) is or becomes generally available to the public; (ii) was in its possession or known by it prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; (iv) was independently developed without use of any Proprietary Information of the Disclosing Party; or (v) is required to be disclosed by law. For purposes of the California Consumer Privacy Act ("CCPA"), Customer is a "business" as defined in the CCPA Section 1798.140(c) and Company is a "service provider" as defined in CCPA Section 1798.140(v). Company acknowledges and agrees that Customer may disclose information that identifies an individual ("Personal Information") of California consumers or households to Company solely for: (x) a valid business purpose; and (y) Company to perform the Services as set forth in this Agreement. Company is prohibited from: (i) selling Personal Information if the California consumer or household has opted out of the sale of their Personal Information; (ii) retaining, using, or disclosing Personal Information for a commercial purpose other than providing the Service; (iii) retaining, using, or disclosing the Personal Information outside of the direct business relationship between Company and Customer; or (iv) using the Personal Information to provide services to another person or entity. Company hereby certifies it understands and will comply with these obligations and restrictions in accordance with the CCPA. Furthermore, Company agrees to reasonably assist the Customer in responding to any requests from a consumer or household exercising their rights under the CCPA.
3.2 To the extent other U.S. states enact data protection laws with requirements that differ from the CCPA and it is determined that the Services under the Agreement are within the scope of such other data protection laws, Company and Customer agree to cooperate in good faith to amend this Agreement to include any necessary additional terms and conditions related thereto.
3.3 Company shall own and retain all right, title, and interest in and to: (a) the Application and Software, all derivative works, improvements, enhancements, or modifications thereto; (b) any works of authorship, software, applications, inventions, or other technology, developed in connection with the Application, the Software, the Services, or the provision of support; and (c) all intellectual property rights related to any of the foregoing. To the extent any rights, title, or interest in and to the foregoing vest in Customer, Customer hereby irrevocably assigns such right, title, and interest to Company. Customer will not have any rights to the Application except as expressly granted in this Agreement. Company reserves to itself all rights to the Application and Services not expressly granted to Customer in accordance with this Agreement.
3.4 If Customer provides any feedback to Company concerning the functionality and performance of the Application (including identifying potential errors and improvements) or the Services, Customer hereby irrevocably assigns to Company all right, title, and interest in and to such feedback, and Company is free to use the feedback without payment or restriction.
3.5 Company may use Customer's name, trademark, tradename, service mark, and logo in its client lists, promotional materials, and on its website and other social media platforms to identify Customer as Company's customer.
3.6 Customer shall own all right, title and interest in and to the Customer Data. Customer hereby grants to Company during the Term a non-exclusive, irrevocable (subject to Customer's rights to terminate this Agreement), royalty-free, transferable, worldwide license, with the right to grant and authorize sublicenses as set forth below, to process, transmit, store, use, disclose, display, and benefit from the Customer Data in connection with the performance of its obligations or the exercise of its rights under this Agreement. Company may sublicense this license to any third party who acts for or in support of Company, provided that Company is responsible for any breach of this Agreement by any such sublicensee. Company shall have no control over, and no responsibility for, Customer Data. Customer represents and warrants that it has all necessary consents, licenses and rights necessary to provide all Customer Data.
3.7 Notwithstanding anything to the contrary, Company shall have the right to: (a) collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Application and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) ("Usage Data"), and Company will be free (during and after the Term) to use such Usage Data to improve and enhance the Application, Software, and Services and for other development, diagnostic, corrective, or other business purposes in connection with the Application and other Company offerings; and (b) use Customer Data in a deidentified and aggregated manner in Company's sole discretion (together with Usage Data, "Company Data"). For the avoidance of doubt, such Company Data shall not constitute Customer Data. Company Data will constitute Proprietary Information of Company.
4.1 Customer will pay Company the then applicable fees described in the Order Form for the Application and Services in accordance with the terms in the Order Form (the "Fees"). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current renewal term, upon 30 days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of access to the Application or performance of the Services. Customer shall be responsible for all taxes associated with the Application or Services other than U.S. taxes based on Company's net income.
5.1 Subject to earlier termination, this Agreement is for the Initial Term as specified in the Order Form. After the Initial Term, unless Customer provides written notice to Company of its intent to terminate this Agreement at least thirty (30) days before the end of the Initial Term, this Agreement automatically renews for one (1) year periods (each a "Renewal Term" and together with the Initial Term, the "Term"), unless a party provides written notice to the other of its intent not to renew at least ninety (90) days before the end of the then applicable Renewal Term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon 30 days' notice (or without notice in the case of nonpayment) if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Application and Services up to and including the last day on which the Application or Services are provided (and if Company terminates this Agreement due to Customer's material breach, Customer will pay the balance of the Fees based on the average amount of monthly Fees paid or payable to Company for the period prior to the effective date of termination). All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, resale and reexport restrictions, and limitations of liability.
Company shall use reasonable efforts consistent with prevailing industry standards to provide the Application in a manner which minimizes errors and interruptions in the Application and shall perform the Services in a professional and workmanlike manner. Company warrants that to Company's knowledge the Software does not contain any virus or other malicious code and that the Application and Services comply with applicable law. The Application may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company's reasonable control, but Company shall use reasonable efforts to provide advance electronic notice of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE APPLICATION, INCLUDING ANY WARRANTY THAT THE APPLICATION WILL PREVENT OR IDENTIFY THEFT, DANGER OR POTENTIAL DAMAGE TO OR LOSS OF PROPERTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE APPLICATION AND SERVICES ARE PROVIDED "AS IS" AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
7.1 Company shall defend Customer from liability to third parties resulting from Company's infringement by the Application of any United States patent or copyright or misappropriation of any trade secret; provided, that Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. Company's obligations under this Section 7.1 do not apply: (a) with respect to portions or components of the Application: (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer's specifications, (iii) that are modified after delivery by Company, or (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination; (b) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; (c) where Customer's use of the Application is not strictly in accordance with this Agreement; or (d) where such claim arises, in whole or in part, from Customer's gross negligence or willful misconduct.
7.2 If, due to a claim of infringement, the Application is held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense: (a) replace or modify the Application to be non- infringing provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer a license to continue using the Application; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Application.
7.3 Customer hereby agrees to indemnify and hold harmless Company and Company's and Company's affiliates and its and their officers, directors, representatives, contractors, employees, successors, and assigns against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from: (a) an alleged violation of Section 2 or otherwise from Customer's use of Application, including without limitation alleged violations of laws concerning surveillance, data subject notice and consent, and/or biometric data privacy; (b) liability resulting from Company's use of Customer Data in accordance with this Agreement; or (c) Customer's material breach of this Agreement. Customer's obligations under this Section 7.3 do not apply to the extent arising from Company's gross negligence or willful misconduct.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), LICENSORS, AND AFFILIATES AND ITS AND THEIR OFFICERS, DIRECTORS, REPRESENTATIVES, CONTRACTORS, EMPLOYEES, SUCCESSORS, AND ASSIGNS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE APPLICATION OR SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Except for the obligation to pay Fees or other money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, epidemic, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause; and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
Customer acknowledges that Company has made significant investments in its relationships with its employees, contractors, and other personnel. To protect those relationships, during the Term and one (1) year after the expiration or termination of this Agreement, other than through general advertisements for employment, Customer shall not, directly or indirectly, by any means or devices whatsoever, in any individual or representative capacity, (a) hire, employ or attempt to hire or employ any employee of Company or any third party who has been introduced to Customer through its performance of its obligations under this Agreement; or (b) otherwise solicit, request, entice or induce such personnel to terminate their employment or relationship with Company.
Customer acknowledges that the Application and other Services and Software are subject to U.S. and international import, export, and reexport control laws and regulations and trade sanctions. In connection with all activities permitted in this Agreement, Customer shall comply with all applicable import, export, and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce and trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control ("OFAC"). Specifically, Customer acknowledges and confirms that it is acquiring the Application and other Services and Software for its own use and will not provide, sell, ship, export, re-export, re-transfer or divert the Application or other Services and Software directly or indirectly through third parties or otherwise, to any restricted party as specified in the regulations listed above ("Restricted Party") or to or through countries or regions that are the target of sanctions under trade control laws (presently, Cuba, Iran, North Korea, Syria, Russia, Belarus, and the Crimea, Donetsk People's Republic (DNR), and Luhansk People's Republic (LNR) regions of Ukraine) ("Sanctioned Country"). Additionally, Customer warrants that it is (1) not located in, or owned or controlled by a person resident in or an entity formed under the laws of a Sanctioned Country, and (2) is not, and is not owned or controlled by, a Restricted Party. Customer shall immediately notify Company if it becomes a Restricted Party or its export privileges are denied, suspended or revoked in whole or in part by any U.S. or non-U.S. government or non-governmental entity or agency.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by Customer except with Company's prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. Each party hereby irrevocably consents to the jurisdiction and venue of the federal, state, and local courts in the State of New York in connection with any action arising out of or in connection with this Agreement.