“Affiliate” means any entity that, before or after the Effective Date, controls, is controlled by, or under common control with, a party, where “control” means to own, or the ownership of, the power to direct or manage the affairs of the party or entity through voting power or by contract, but only for as long as such control or common control exists.
“Applicable Law” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under this Agreement.
“Authorized User” means each individual, including any employee or contractor of Customer and/or its Affiliates who (a) has been authorized by KITE to access and use the Platform; and (b) has been assigned a unique username and password for accessing and using the Platform.
“Customer Content” means all information, data, text, content, and material (including Personal Data) that Customer or Authorized Users enter into, upload to, post on, provide to, or otherwise transmit to the Platform or provides in connection with the Services.
“Documentation” means the instruction manuals, specifications and other documents that KITE makes available to Customer and Authorized Users and that detail the functionality, operation and use of the Platform.
“Fees” means the amounts payable by Customer to KITE pursuant to this Agreement (including without limitation the applicable SOW).
“Intellectual Property Rights” or “IP Rights” means (a) rights in works of authorship, including copyrights, moral rights, mask works and copyright applications and registrations; (b) trademark and trade name rights and similar rights; (c) trade secret rights; and (d) patent and industrial property rights and rights in patent applications, renewals, extensions, combinations, divisions and reissues.
“KITE Content” means any information collected by KITE via the Platform by referencing Customer Content or otherwise derived by processing Customer Content, including without limitation any inferences, insights, or other predictive information or data that is sufficiently different from Customer Content such that Customer Content cannot be reverse engineered or otherwise identified from analysis or further processing of KITE Content; provided, however, that KITE Content excludes the Platform Reports and the Services Reports.
”Personal Data” means any information obtained from Customer or an Authorized User in connection with this Agreement: (a) relating to an identified or identifiable natural person; (b) that can reasonably be used to identify or authenticate an individual, including but not limited to name, contact information, precise location information, persistent identifiers, government-issued identification numbers, passwords, or PINs, financial account numbers and other personal identifiers; and (c) any information that may otherwise be considered “personal data” or “personal information” under Applicable Law.
“Platform” means the KITE proprietary, cloud-based software-as-a-services startup relationship management platform designed to enhance how Customer engages with the startup ecosystem.
“Platform Reports” means the reports (a) made available by KITE to Customer; and/or (b) generated by Customer, in each of (a) and (b) via the Platform.
“Reports” means the Platform Reports and/or Services Reports (to the extent applicable).
“Services Reports” means the reports made available by KITE to Customer in connection with Customer’s use of the KITE’s professional services.
2. Provision of Services.
2.1 Statements of Work. KITE shall provide the Platform, professional services, Reports, and any and all other results of services (individually and collectively, “Services”) as specified in a mutually executed Statement of Work (“SOW”). In the event of any conflict or inconsistency between this Master Services and Software License Agreement and an SOW, the terms, conditions and provisions of this Master Services and Software License Agreement will prevail.
2.2 KITE’s Responsibilities. KITE will perform any professional services hereunder with skills, care and diligence consistent with generally recognized industry standards for similar services.
3.1 Ownership. As between the parties, Customer owns all right, title and interest, including all related Intellectual Property Rights, in and to Customer Content, Personal Data and Customer Confidential Information, and KITE owns all right, title and interest, including all related Intellectual Property Rights, in and to KITE Content, KITE Confidential Information, the Platform and the Documentation (collectively, the “KITE Materials”).
3.2 Assignment of Reports. The Reports generated as a result of the Services hereunder shall be owned by and be the property of Customer, and Customer shall have the exclusive ownership of all such Reports. KITE hereby assigns, and upon creation of each Report automatically assigns to Customer, its successors and assigns, all right, title and interest in and to the Reports.
4. Platform and KITE Content.
4.1 License Grant. During the Term and subject to the terms of this Agreement, KITE hereby grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, to access and use the Platform, KITE Content and the Documentation, up to the number of concurrent Authorized Users identified on the SOW, solely for purposes of Customer’s internal (i.e., non-commercial resale) business purposes and in accordance with the limitations on Authorized Users (if any) set forth in the SOW. KITE may modify the Platform from time to time, so long as such modification(s) do not materially reduce the Platform’s performance or capabilities.
4.2 Documentation. All copies of the Documentation authorized under this Agreement shall include the same copyright and proprietary notices that appear on the versions of the Documentation that KITE makes available to Customer. Documentation includes any and all amendments or supplements made available by KITE to Customer during the Term and is hereby incorporated into this Agreement.
4.3 Restrictions. Customer will not use the KITE Materials for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) use or access the KITE Materials except as permitted hereunder; (b) use the KITE Materials as a service bureau or otherwise for the benefit of a third party; (c) rent, repackage, lease, loan, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the KITE Materials or any copy thereof; (d) misappropriate any data or information from the KITE Materials; (e) disrupt the functioning of the Platform; (f) otherwise act in a manner that interferes with KITE’s operation of the Platform or with the use of the Platform by others; (g) gain any unauthorized access to the KITE Materials for any purpose; (h) copy, modify, create derivative works of, in whole or in part, decompile, reverse engineer, disassemble, decompile, decode, adapt, remove, alter, circumvent, tamper with, or otherwise attempt to derive or gain access to the source code, object code, or underlying structure, ideas, or algorithms of the KITE Materials, or any security technology, software, or rights management information contained within the Platform or in any software used to enable the Platform; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the KITE Materials; (j) access or use the Platform to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (k) exploit the KITE Materials in any unauthorized way whatsoever, including by trespass or burdening server or network capacity or infrastructure (including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or infrastructure); (l) use the KITE Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law; (m) monitor the availability, performance, or functionality of the Platform or for any similar benchmarking or competitive purposes; (n) interfere with or disable any features, functionality, or security controls of the Platform or otherwise circumvent any protection mechanisms for the Platform; (o) create any software or application that replicates or competes with the Platform; (p) combine or integrate the Platform, KITE Content, Platform Reports, or Documentation with any software, technology, services, or materials not authorized by KITE; (q) reveal Customer’s access key or other credentials (e.g., username and password) to the Platform (“Access Key”) to any third party except when consented to in writing by KITE; or (r) otherwise access or use the Platform, KITE Content, Platform Reports, or Documentation, or otherwise attempt, or encourage or assist any third party to do, any of the foregoing, except as expressly authorized in this Agreement. Customer shall immediately notify KITE of any security breach of its Access Key and will be fully liable and indemnify KITE for any Losses (as defined in Section 10 (Indemnification) that KITE incurs as a result of unauthorized use of Customer’s Access Key.
4.4 Additional Licenses. Customer may increase the number of Authorized Users by ordering new licenses from KITE and signing a new or supplemental SOW. Additional licenses for Authorized Users will be coterminous with the term of the licenses under the initial SOW and the fees for the additional licenses will be prorated accordingly.
4.5 Service Suspension. KITE may suspend Customer’s access to the Platform, and that of any Authorized User if: (a) KITE needs to carry out emergency maintenance on the Platform or Customer’s or Authorized Users’ use of the Services presents an immediate and genuine threat to the security of the Platform or the performance of the Platform for other KITE customers; and/or (b) an Authorized User is using the Services in violation of Section 4.3 (Restrictions) (each of (a) and (b), a “Service Suspension”). KITE shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer to provide updates regarding resumption of access to the Platform following any Service Suspension. In case of Service Suspensions, KITE shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. KITE will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any third party may incur as a result of a Service Suspension, and Customer shall not be entitled to any refunds of any fees on account of any Service Suspension.
4.6 Third-Party Software. All or some portions of the Platform may be provided under separate or additional terms and conditions (“Third-Party Software”). Notwithstanding anything to the contrary in this Agreement, any and all such Third-Party Software is made available on an “as is” and “as available” basis without warranty or indemnity of any kind. To the extent there is a conflict between the terms and conditions applicable to such Third-Party Software and this Agreement, the Third-Party Software’s applicable terms and conditions shall control.
4.7 Reservation of Rights. KITE reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the KITE Materials.
4.8 Delivery. KITE will deliver the Platform electronically and will provide Customer with login credentials to allow Customer and its Authorized Users to access and use the Software via a hosted interface.
4.9 Customer Responsibilities.
4.9.1 Authorized Users. Customer is responsible and liable for all uses of the KITE Materials resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including without limitation any Customer Inputs. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users in connection with their use of the Platform, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the KITE Materials and will cause all Authorized Users to comply with such provisions.
4.9.2 Equipment. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the related equipment or services (collectively, “Equipment”). Customer shall be responsible for maintaining the security of the Equipment and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4.9.3 License to Customer Content. Customer hereby grants to KITE a non-exclusive license to use, have used, store, process, transfer, reproduce, distribute, perform, display, and create derivative works of Customer Content for the purpose of providing the Services. Customer represents and warrants that, prior to posting Customer Content, Customer has obtained all rights and/or licenses necessary to authorize KITE’s processing of Customer Content.
4.9.4 Restrictions on Customer Content. Customer shall not, and shall ensure that its Authorized Users do not, upload any Customer Content to the Platform, or make any Customer Content available in connection with the Services, that: (a) contains any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable; (b) promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (c) infringes any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person; (d) violates the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under Applicable Law, or that otherwise may be in conflict with this Agreement; (e) is or would be likely to deceive or confuse any person; (f) promotes or assists in any illegal activity; (g) involve contests, sweepstakes, barter, advertising, or pyramid schemes; (h) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, “spimming,” or “spamming”; or (i) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page). Customer is wholly responsible for Customer Content, and Customer assumes all risks associated with such Customer Content, including KITE’s or any third party’s reliance on its quality, accuracy, reliability, appropriateness, or any disclosure by Customer of information in Customer Content that makes anyone personally identifiable.
5. Fees; Payment.
5.1 Fees. Customer shall pay the Fees set forth in the applicable SOW in accordance with the payment terms set forth therein. All Fees shall be stated and paid in United States dollars and are non-refundable and non-cancelable unless otherwise set forth in this Agreement or as required by Applicable Law.
5.2 Late Payments. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Law, whichever is less, and Customer will indemnify and hold KITE harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder.
5.3 Invoices. KITE shall provide Customer with an invoice for the Services based on the prices set forth on, in accordance with the timeframes set forth in, the SOW and taxes as set forth in Section 5.4 (Taxes). Customer shall pay KITE within the timeframe specified in the SOW.
5.4 Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on KITE’s net income. If KITE has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.4 (Taxes), the appropriate amount shall be invoiced to and paid by Customer unless Customer provides KITE with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.5 Fee Increases. KITE may, in its sole discretion, increase or otherwise modify the Fees at each renewal period during the Subscription Term by providing Customer notice of changes to the Fees at least seven (7) days prior to the end of the then-current Term or Renewal Term, as applicable. If Customer does not agree to the new or changed Fees, Customer may exercise its right not to renew the Agreement.
6. Term and Termination.
6.1 Term. Unless earlier terminated in accordance with this Section 6 (Term and Termination), this Agreement shall be effective as of the Effective Date and continue through the period stated on the SOW (the “Term”), unless terminated earlier under this Section 6 (Term and Termination). If the parties have selected auto-renewal on the SOW, this Agreement will automatically renew for successive one-year terms (each, a “Renewal Term”).
6.2 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party: (a) if the other party breaches a material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party breaches a material provision of this Agreement and, given the nature of the breach, the breach cannot be remedied within thirty (30) days. Each party may terminate this Agreement immediately upon delivery of a written notice to the other party if the other party (a) makes a general assignment for the benefit of its creditors; (b) commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, which proceedings are not dismissed within sixty (60) days; or (c) is liquidated or dissolved.
6.3 Effect of Termination. Sections 1 (Definitions), 3 (Ownership), 4.3 (Restrictions), 4.9.4 (Restrictions on Customer Content), 5 (Fees; Payment), (6 (Termination), 6.3 (Effect of Termination), 6.4 (Data Porting and Deletion), 7 (Confidentiality), 9 (Representations and Warranties), 10 (Indemnification), 11 (Limitation of Liability), and 13 (Miscellaneous) shall survive termination of this Agreement. If this Agreement or any SOW is terminated by Customer under Section 6.2 (Termination for Cause) or by KITE under Section 10.2 (KITE Mitigation), then KITE shall, within thirty (30) days of the termination, provide Customer a refund of Customer an amount calculated by (i) multiplying the Fees for the then-current Term, Renewal Term or billing period (if a Term or Renewal Term is multi-year and the Fees are billed on an annual or other basis) (ii) times the number of days remaining in the applicable Term, Renewal Term or billing period as of the SOW or Agreement termination date (iii) divided by the number of days in the applicable Term, Renewal Term or billing period, assuming 365 days in a calendar year. If KITE terminates this Agreement and/or SOW under Section 6.2 (Termination for Cause), KITE shall invoice Customer (i) for any unpaid Fees for the remainder of the applicable Term or Renewal Term, under the terminated SOW and (ii) for any Services that were performed under any SOW up to and including the expiration or termination date of the Agreement, that were not yet invoiced and that were not unreasonably rejected by Customer. Upon the expiration or termination of this Agreement for any reason and subject to Section 6.3 (Effect of Termination), all rights and licenses granted to either party under this Agreement will immediately terminate. Subject to Section 6.3 (Effect of Termination), within thirty (30) days of the expiration or termination of this Agreement, each party and its Affiliates shall return to the other party or, upon the party’s request, destroy all Confidential Information disclosed to them by Confidential Information of the other party and its Affiliates under this Agreement, except for Confidential Information of the other party that is stored in electronic systems, that cannot be readily identified or destroyed and that will be securely destroyed over time in accordance with each party’s records retention policy. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination.
6.4 Data Porting and Deletion. KITE will retain Customer Content stored on the Platform for at least forty-five (45) days after the expiration or termination of this Agreement. During this period, upon Customer’s request, KITE will make available to Customer a data file, in a mutually agreed format, of Customer Content stored on the Platform. Within sixty (60) days after the expiration or termination of this Agreement, KITE shall permanently delete Customer Content from the Platform.
7.1 Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence all non-public information and know-how disclosed by a party and/or its Affiliates to it pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the KITE Materials shall be KITE’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) not use the other party’s Confidential Information except as contemplated herein; (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein); and (d) not reverse engineer technical information that is Confidential Information or otherwise attempt to derive its composition. Each party agrees to promptly notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of confidentiality owed to the disclosing party; (ii) discovered, created or independently developed by the receiving party without use of, reliance upon, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party as shown in records of the receiving party; (iv) is acquired by the receiving party on a non-confidential basis from a third party with the right to disclose the information, or (v) required to be disclosed by law or court order; provided that the receiving party shall (i) provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure; (ii) only disclose that portion of the Confidential Information that, in the opinion of its legal counsel, is required to be disclosed; and (iii) exercise all reasonable efforts to obtain assurance that confidential treatment will be accorded to the disclosed Confidential Information. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
7.3 Remedy. Each party agrees and acknowledges that any breach or threatened breach of this Section 7 (Confidentiality) may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
8. Suggestions and Improvements.
Customer may choose to, or KITE may invite Customer to, submit comments or ideas about KITE’s products and services, including without limitation the Platform and Documentation (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place KITE under any fiduciary or other obligation, and that KITE is free to use the Feedback without any additional compensation to Customer or anyone else, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, KITE does not waive any rights to use similar or related ideas previously known to KITE, or developed by its employees, or obtained from sources other than Customer.
9. Representations and Warranties.
9.1 General. Each party represents and warrants that (a) it has the right to enter into this Agreement; and (b) the individual signing this Agreement on its behalf is authorized to sign this Agreement and legally bind the party. Customer further warrants and covenants that it will use the Services only in accordance with all applicable laws and regulations.
9.2 KITE Representations and Warranties. KITE hereby represents and warrants to Customer that: (a) during the Term the functionality of the Software will not be materially decreased from the functionality of the Software available as of the Effective Date (the “Performance Warranty”); (b) KITE will use reasonable efforts consistent with industry standards designed to ensure that no viruses, spyware, malware, or similar items will be coded or introduced into the Software; and (c) to the extent applicable, KITE will perform professional services in a professional and workmanlike manner. Customer’s sole and exclusive remedy for KITE’s breach of its Performance Warranty will be to terminate this Agreement and receive a refund in accordance with Section 6.2 (Termination for Cause).
9.3 Customer Representations and Warranties. Customer hereby represents and warrants that: (a) its use of the Platform, KITE Content and Documentation will comply with all Applicable Law; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Law to submit, transmit, provide, receive, access and/or use its Customer Content or Personal Information, and any other content it provides, receives, accesses and/or uses through or in connection with the Platform, KITE Content and Documentation; (c) it is solely responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with the Customer Content and Personal Information; and (d) the Customer Content and KITE’s use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Law or infringement or misappropriation of any rights of any third party, including without limitation any intellectual property right or privacy right; (ii) any liability from KITE to any third party; or (iii) the payment by KITE of any fees to any third party.
9.4 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT: (A) KITE, ON BEHALF OF ITSELF AND ITS LICENSORS, EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; AND (B) THE KITE MATERIALS AND KITE CONFIDENTIAL INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, AND KITE AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE KITE MATERIALS AND KITE CONFIDENTIAL INFORMATION. KITE MAKES NO WARRANTY OF ANY KIND THAT THE KITE MATERIALS OR KITE CONFIDENTIAL INFORMATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
10.1 KITE Indemnity. KITE shall defend Customer against or settle any suit, claim, action, or proceeding brought against Customer by a third-party (each an “Action”) to the extent that the Action arises out of a claim that the Platform infringes any U.S. copyright or trademark or misappropriates any U.S. trade secret of such third-party (such claim, an “Infringement Action”). KITE shall also pay any damages or expenses, including reasonable attorneys’ fees and costs (“Losses”) that are finally awarded against Customer in any Action by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a court-approved settlement of any Action (provided that KITE may not enter into any settlement or dispose of any claim in a manner that requires Customer to admit any liability or that places any material obligation on Customer without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).
10.2 KITE Mitigation. Should the Platform become, or in the opinion of KITE be likely to become, the subject of such an Infringement Action, KITE may, in its sole discretion and at no cost to Customer: (a) procure for Customer the right to use the Platform; (b) replace or modify, in whole or in part, the Platform without materially decreasing its functionality; or (c) if neither (a) nor (b) are, in KITE’s sole and absolute discretion, commercially practicable, accept return of the Platform, KITE Content and Documentation, or remove the allegedly offending module thereof, and, refund the unused Fees paid for the remainder of the term.
10.3 Limitations. The obligations under Section 10.1 (KITE Indemnity) do not apply to KITE to the extent an Infringement Action arises out of or results from (a) use of the Platform in combination with any hardware or software not specified, enabled or authorized by KITE; (b) an alteration or modification of the Platform not provided or authorized by KITE; (c) use of the Platform in a manner that is inconsistent with this Agreement or the Documentation (d) any Customer method or process in which the Platform, KITE Content or Documentation may be used; or (e) any compliance with Customer’s specifications. Customer shall indemnify and hold harmless KITE and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (a) through (c) (inclusive) above.
10.4 Customer Indemnification. Customer shall defend, indemnify, and hold harmless KITE, its Affiliates, and their respective officers, directors, employees, agents, successors and assigns (each, a “KITE Party”), from and against, or settle, any and all Actions (including reasonable attorneys’ fees) to the extent that the Action arises out of, or relates to, a third-party claim that relates to: (a) Customer’s or its Authorized Users’ use of the KITE Materials in a manner not permitted under this Agreement and Documentation; (b) Customer’s or its Authorized Users’ violation of Applicable Law; (c) Customer’s or its Authorized Users’ breach of Section 4.1 (License Grant) and 9.3 (Customer’s Representations and Warranties); (d) the Customer Content infringes the intellectual property or privacy rights of the third-party claimant or violates Applicable Law; and/or (e) Customer’s or its Authorized Users’ negligence or willful misconduct. Customer shall also pay any damages and expenses, including attorneys’ fees and costs, that are finally awarded against any KITE Party in any Action or that are agreed-to in a court-approved settlement of any Action.
10.5 Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
10.6 Sole Remedy for Infringement. THIS SECTION 10 (INDEMNIFICATION) SETS FORTH KITE’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SOFTWARE, REPORTS AND THIS AGREEMENT.
11. Limitation of Liability.
11.1 Liability Cap. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO KITE HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
11.2 Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS, NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT AS PROVIDED IN SECTION 9 (REPRESENTATIONS AND WARRANTIES), FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 Excluded Claims. As used in this Agreement, “Excluded Claims” means: (a) Customer’s breach of Section 4.1 (License Grant) or Section 9.3(Customer Representations and Warranties); (b) either party’s breach of its confidentiality obligations under Section 7 (Confidentiality); (c) either party’s indemnification obligations under Section 10 (Indemnification) (provided that in no event shall KITE’s liability in connection with such obligations exceed two (2) times the amount paid or payable by Customer to KITE hereunder during the one (1) year period immediately prior to the event giving rise to such liability); and (d) the gross negligence or willful misconduct of either party or its agents.
11.4 Customer Acknowledgment. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
12. Compliance with Laws. Each party will comply with all Applicable Law.
13.1 Assignment. Neither party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the other party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, each party may assign this Agreement to a successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 13.1 (Assignment), this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
13.2 Force Majeure. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 13.2 (Force Majeure), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
13.3 Governing Law. This Agreement and any disputes arising out of the subject matter of the Agreement, including any non-contractual claim, will be governed by the laws of the State of California, without regard to its conflict or choice of law's provisions. Any action, including any non-contractual claim, arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby (a) waives any venue or inconvenient forum defense to any action or proceeding filed and maintained in such courts; and (b) disclaims its right to initiate any action or proceeding arising out of or related to this Agreement in any other court or forum.
13.4 Informal Dispute Resolution. Prior to initiating any legal action, the parties shall attempt to resolve informally any dispute, including any non-contractual claim, arising out of, or related to, this Agreement before initiating any legal action.
13.5 Independent Contractors. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
13.6 Notices. All notices under this Agreement shall be in writing and sent to the party’s business address set forth in the SOW and shall be deemed to have been given upon receipt if sent by personal delivery or email or if sent by certified or registered U.S. Mail with return receipt requested or by a major overnight commercial delivery service.
13.7 U.S. Government Restricted Rights. If the Platform is being licensed by the U.S. Government, the Platform is commercial computer software developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
13.8 Export Law Assurances. Customer understands that the Software is or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PLATFORM OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAW, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE SOFTWARE OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
13.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. Each counterpart may be delivered electronically or by email in .pdf format. This Agreement may also be signed electronically. By signing electronically, each party hereby acknowledges that the electronic signatures appearing on this Agreement shall validly bind each party and shall be treated, for purposes of validity, enforceability and admissibility, the same as handwritten signatures.
13.10 Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the Terms. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
13.11 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the substantially prevailing party shall be entitled to reasonable attorney’s fees, costs in addition to any other relief to which such party may be entitled.
13.12 Entire Agreement; Modification; Waiver; Severability. This Agreement, its SOWs, order forms, exhibits, and any other documents incorporated into this Agreement by reference constitutes the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, including without limitation, any pre-existing confidentiality or nondisclosure agreement(s) between them, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. Except as otherwise provided herein, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing, signed by both parties and cites the provision of the Agreement that is amended or supplemented. The failure of either party to enforce obligations or exercise rights under this Agreement shall not constitute a waiver of a waiver of the party’s right to enforce that obligation or exercise that right in the future. No waiver under this Agreement is effective unless the waiver is in writing and signed by an authorized representative of the party granting the waiver. If any provision of this Agreement is held invalid or unenforceable under Applicable Law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.