This Master Services Agreement (“Agreement”) is between KPA Services, LLC (“KPA” or “Supplier”) and the entity which as accepted this Agreement through an Order Form which references this Agreement (“User”), hereinafter collectively referred to as “the Parties”. This Agreement sets forth the terms and conditions that govern orders placed under this Agreement. User expressly agrees to the terms set forth below.
1. Definitions
“Access Rights” means the access rights purchased by User or its clients as set forth in the Order Form.
“Content Materials” means all content, materials and other information made available to User’s clients in and/or through the Software.
“Change of Control” as to a Party means any acquisition of securities, merger, consolidation, reorganization, proxy contest or other transaction or event involving such Party or its securities (or any series of related transactions or events) as a result of which any person or entity (or any group of persons or entities) that did not directly or indirectly Control such Party prior to the transaction or event (or series of transactions or events) thereafter directly or indirectly Controls such Party.
“Control” means having direct or indirect: (i) ownership of more than fifty percent (50%) of the voting securities or other ownership interests representing the equity, voting stock, general partnership or membership interests in an entity; or (ii) power to direct the management or policies of an entity by contract, law or otherwise.
“Third Party Content/Services” means all content, materials, services and other information supplied by a third party to Supplier and which Supplier makes available to End Users in and/or through the Software.
“End Users” means any and all insureds and clients of User, and any clients and/or customers of User under a broker of record.
“Loaded Content” means all content, materials and other information that User upload, transmit or distribute to End Users in and/or through the Software.
“Documentation” means all documentation and similar materials regarding the use of the Software that is provided by Supplier, regardless of whether in print, online or electronic format.
“Software” means Supplier’s proprietary web-based software that Supplier makes available to User or End Users.
“Services” means Supplier’s proprietary consulting and professional services that Supplier makes available to User or End Users.
2. Grant of License and Appointment
During the Term of this Agreement and subject to the terms and conditions set forth herein, including without limitation, the Access Rights purchased by User, Supplier hereby grants to User a limited, non-exclusive, non-sublicensable, nontransferable right to use the Software for, and only for, its End Users and uses specified in this Agreement and/or the Order Form. Accordingly, Supplier further appoints User, during the Term and subject to the terms and conditions set forth herein, as an authorized, non-exclusive distributor of the Software, having the right to market, promote and distribute the Software and/or the Content Materials, solely to its clients and solely for purposes of exercising its license rights set forth in this Section 2.
A separate agreement, executed by Supplier and any given non-client, must be in place before any non-client may be granted access to use the Software under the terms of this Agreement. This separate agreement may include an additional access fee that is to be determined at the sole discretion of Supplier.
Notwithstanding any term or provision of this Agreement to the contrary, but subject to Section 11 below, and provided further that Supplier shall not compete with or interfere with User’s business or clients, Supplier shall have the right, upon the expiration or termination of this Agreement or in the event a client ceases to be a client of User hereunder, to transition any such then current or former clients to become direct customers of Supplier, pursuant to a separate agreement to be entered into between Supplier and such current or former clients and subject to fees payable by such current or former clients to Supplier, as determined in the sole discretion of Supplier.
3. Ownership Rights – Private Labeling
User acknowledges and agrees that the Software, the Content Materials, and the User Documentation are licensed and not sold. The Software, the Content Materials and the Documentation are owned by Supplier and/or its licensors and are protected by United States copyright laws and international treaty provisions. Supplier and/or its licensors own and retain all right, title and interest in and to the Software, the Content Materials and the Documentation, including all patents, trademarks, copyrights, trade secrets and other intellectual property rights embodied or contained therein or otherwise associated therewith. User’s use of the Software does not transfer to User any right, title or interest in any of the foregoing, and User will not acquire any such right, title or interest, except as expressly set forth in this Agreement. User and its clients may not use, copy or distribute the Software, the Content Materials and/or the Documentation except as set forth in this Agreement without Supplier’s prior written authorization. User’s clients may not copy the Content Materials and/or the Documentation, or any other printed materials accompanying the Software, if any, except for the client’s own use within client’s organization, in each case, subject to and as permitted by the terms of the Agreement.
4. Availability
Supplier shall use commercially reasonable efforts to ensure that the Software is available for use and/or access by clients on an uninterrupted basis. However, User acknowledges and agrees that the Software will not always be available, as a result of, among other things, scheduled maintenance, system downtime, failures of the Internet generally, and other causes. In the event the Software becomes unavailable for access and/or use by clients (other than as a result of scheduled maintenance and/or system downtime), Supplier shall use commercially reasonable efforts to restore such availability. User acknowledges and agrees that except as otherwise set forth herein, Supplier shall have no liability to User and/or any client with respect to any such unavailability.
Supplier further reserves the right to modify, alter and/or change the Software at any time, including without limitation, by modifying, altering and/or changing the Content Materials or by removing certain Content Materials altogether. User acknowledges and agrees that Supplier shall have no liability to User or to any client with respect to any such modifications, alterations or changes, or with respect to any Content Materials that have been removed from the Software altogether.
5. Third Party Content/Services
Certain Third-Party Content/Services may require that User and/or its End Users enter into a contractual agreement with the third party that provides such Third-Party Content/Services. User acknowledges and agrees that any such Third-Party Content/Services are provided by Supplier as a convenience to End Users, and not as an endorsement or recommendation by Supplier of the Third-Party Content/Services or the third-party provider of such content/services. While Supplier has used commercially reasonable measures to evaluate the third-party providers of such Third-Party Content/Services and the contents thereof, Supplier does not guarantee the reliability, completeness, accuracy, and/or legality of such Third-Party Content/Services.
All use of such Third-Party Content/Services are at User’s and its End Users’ own risk. If in using the Third Party Content/Services, User or its End Users cease to use the Software or otherwise enter into a contractual agreement with a third party provider with respect to such Third Party Content/Services, then the use of such Third Party Content/Services is governed by that contractual agreement or the third party provider’s terms of use, as applicable, and any dispute between the User or the Client and such third party regarding the Third Party Content/Services is solely between User or the End User and the third party provider. Supplier shall have no liability with respect to any such dispute(s).
6. Payments
User will pay all fees specified in the Order Form, in each case, pursuant to the terms of this Agreement and the terms thereof. Except as otherwise specified herein or in the Order Form: (i) fees are based on the license rights purchased and not actual usage; and (ii) payment obligations are non-cancelable and fees paid are non-refundable.
7. Restrictions
a. Transfer of Rights
Neither User nor its clients may rent, lease, give, loan, or allow the use of the Software and/or the Content Materials, or any part thereof, including any accompanying software and documentation, to any third party that is not specifically licensed or allowed under the terms of this Agreement to receive, access or use the Software and/or the Content Materials. Other than its staff and participating clients, User may not permit third parties to benefit from the use or functionality of the Software via a timesharing, service bureau or other arrangement, except to the extent such use is expressly permitted in the Access Rights purchased by User.
b. Reverse Engineering and Modification
Neither User nor its clients may reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software, or any part thereof, directly or indirectly, except to the extent the foregoing restriction is expressly prohibited by applicable law. Neither User nor its clients may modify or create derivative works based upon the Software, the Content Materials, or the User Documentation, or any part or portion thereof.
Except as provided below, if Supplier develops any improvements, modifications or enhancements to the Software, Supplier shall provide the same to User. If any improvements, modifications or enhancements result in an increase in the price of the Software, Supplier shall give User sixty (60) days written notice of such increase in price and subject to User’s approval of such increase in price, User shall pay the increased price beginning at the next annual renewal period, at Supplier’s then-current prices. If User does not approve the increased price, then this contract shall terminate at the next renewal period without further liability on the part of either party.
c. User Loaded Content
Certain features of the Software permit End Users to upload and/or transmit content, materials and other information owned and/or controlled by such End Users. With respect to User’s Loaded Content, User’s Loaded Content is and shall always remain User’s or End User’s sole and exclusive property. Accordingly, to the extent necessary to meet its obligations under this Agreement and subject to the provisions of Section 11 of this Agreement, and provided that any such information is not used to compete with User or any End User, User hereby grants to Supplier a non-exclusive, non-transferrable, non-sublicensable license to load, transmit, distribute and/or make available such Loaded Content in and through the Software. User represents and warrants to Supplier as follows with respect to its Loaded Content: (i) that User owns such Loaded Content or otherwise has sufficient rights in the Loaded Content to grant the license rights granted to Supplier in this Section; (ii) that such Loaded Content does not, and its use by Supplier as contemplated in this Section will not, violate, infringe, or misappropriate the intellectual property rights or other proprietary rights of any third party; and (iii) that there are no claims currently pending or, to User’s actual knowledge, threatened as to User’s ownership of or rights in its Loaded Content or as to User’s violation, infringement or misappropriation of any third party intellectual property rights or other proprietary rights with respect to the Loaded Content, and to User’s actual knowledge, User has not engaged in any acts or omissions likely to result in any such claims.
In the event that Supplier discovers that any Loaded Content of User and/or its clients is in violation of this Section or is otherwise alleged to violate, infringe or misappropriate the intellectual property rights or other proprietary rights of any third party, Supplier may, without limiting its rights or creating any liability therefor, immediately remove the Loaded Content from the Software, and may further block and/or restrict User’s and/or its clients’ access thereto pending resolution of any such violation.
Supplier has no obligation to back up or maintain Loaded Content, and Supplier takes no responsibility and assumes no liability for any Loaded Content, including without limitation any loss or damage thereto.
d. Compliance with Agreement; Audit Rights
User may access and/or use the Software and/or Content Materials only in strict compliance with the terms of this Agreement and the Documentation. User may retain administrative access to User’s and/or its clients’ accounts for the Software for purposes of auditing User’s and/or its clients’ compliance with the terms of this Agreement, including without limitation, the usage of the Software and/or the Content Materials. Supplier and/or its designees shall further have the right, upon reasonable prior notice to User, to review and inspect User’s systems, devices, and/or computer records for purposes of determining User’s and/or its clients’ compliance with this Agreement, which review rights shall include, without limitation, the right to access and inspect User’s computers and copy any documents or records in connection with such review of use by User and the End Users. User agrees to cooperate with Supplier in connection with any such audit.
8. Warranty and Disclaimer
a. Limited Warranty
SUPPLIER REPRESENTS AND WARRANTS TO USER THAT FOR A PERIOD OF THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT OR ANY ORDER FORM, THE SOFTWARE WILL SUBSTANTIALLY CONFORM TO THE DESCRIPTION THEREOF IN THE USER DOCUMENTATION. Notwithstanding the preceding sentence, this limited warranty is void if the failure of the Software has resulted from accident caused by User or any End User, misuse, unauthorized use, abuse or misapplication of the Software, including without limitation, any alteration or modification to the Software from the operating environment in which the Software is being used, from any defect in or failure of any third party software or hardware, from failures of the Internet generally, or other causes outside of Supplier’s reasonable control.
In the event of any breach of the foregoing representation and warranty, User acknowledges and agrees that its sole and exclusive remedy, and Supplier’s sole obligation and responsibility, shall be, at Supplier’s option, to repair the Software such that it substantially conforms to the description thereof provided in the Documentation, or refund to User the pro rata amounts paid by User hereunder based on the degree to which User’s and/or its clients’ use of and/or access to the Software has been materially diminished by the alleged breach, as determined by Supplier. SUPPLIER SHALL HAVE NO OTHER RESPONSIBILITY, OBLIGATION OR LIABILITY WITH RESPECT TO ANY BREACH BY SUPPLIER OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION. SUPPLIER MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR FREE OR FREE FROM INTERRUPTION OR FAILURE.
b. Disclaimers
i. General. EXCEPT AS OTHERWISE SET FORTH IN SECTION 7.a ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WITH RESPECT TO THE SOFTWARE, THE CONTENT MATERIALS, AND/OR THE USER DOCUMENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARISING FROM USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, VALIDITY AND/OR NONINFRINGEMENT.
ii. Availability. USER HEREBY ACKNOWLEDGES AND AGREES THAT THE SOFTWARE MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS, INCLUDING WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF THE SOFTWARE, TELECOMMUNICATIONS INFRASTRUCTURE OR THE INTERNET. SUPPLIER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY OR PERFORMANCE.
iii. No Reliance. THE SOFTWARE AND/OR THE CONTENT MATERIALS ARE INFORMATIONAL IN NATURE AND ARE FOR USE AS EXAMPLE MATERIALS ONLY. ACCORDINGLY, THE SOFTWARE AND/OR THE CONTENT MATERIALS MUST BE CUSTOMIZED TO USER AND/OR CLIENT OPERATIONS BASED ON ORGANIZATIONAL AND OPERATIONAL HAZARD ASSESSMENTS, CONTRACTUAL AGREEMENTS, EXPOSURES, ETC. USE OF ANY CONTENT, PROGRAM OR APPLICATION CANNOT AND DOES NOT DIMINISH ANY OBLIGATIONS ESTABLISHED BY ANY FEDERAL, STATE, OR LOCAL STATUTE, CODE, REGULATION, RULE, OR STANDARD. RATHER, USER AND/OR THE APPLICABLE CLIENT ARE RESPONSIBLE FOR USING THEIR OWN PROFESSIONAL SKILL, JUDGMENT AND EXPERIENCE IN ACCESSING AND/OR USING THE SOFTWARE AND/OR THE CONTENT MATERIALS.
USER ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE AND/OR THE CONTENT MATERIALS DOES NOT GUARANTEE THAT THE SOFTWARE AND/OR THE CONTENT MATERIALS WILL PREVENT LOSSES, CLAIMS, LIABILITY, LAWSUITS, OR ACCIDENTS OR SATISFY APPLICABLE FEDERAL, STATE OR LOCAL STATUTES, CODES, REGULATIONS, RULES OR STANDARDS. SUPPLIER ASSUMES NO RESPONSIBILITY FOR THE MANAGEMENT AND/OR CONTROL OF USER’S ACTIVITIES OR THOSE OF ITS CLIENTS, OR FOR THE CORRECTION OF CONDITIONS OF USER’S AND/OR ITS CLIENTS’ OPERATIONS. USER AGREES NOT TO RELY ON, OR TO INSTRUCT, ADVISE OR AUTHORIZE ITS CLIENTS OR ANY OTHER INDIVIDUAL OR ORGANIZATION TO RELY ON, THE SOFTWARE AND/OR THE CONTENT MATERIALS. ALL RISKS ASSOCIATED WITH THE ACCESS TO AND/OR USE OF THE SOFTWARE AND/OR THE CONTENT MATERIALS IS SOLELY WITH USER AND/OR ITS CLIENTS.
iv. Loaded Content. THE CONTENT MATERIALS ARE CHECKED TO BE VIRUS FREE. HOWEVER, ANY LOADED CONTENT IS NOT GUARANTEED BY SUPPLIER TO BE FREE OF VIRUSES OR MACROS WHICH MAY PREVENT USE OF SUCH LOADED CONTENT. USER, AND NOT SUPPLIER, IS RESPONSIBLE FOR ENSURING THAT ALL LOADED CONTENT IS FREE OF VIRUSES, OR COMPLIANT WITH ANY APPLICABLE FEDERAL, STATE OR LOCAL STATUTE, CODE, REGULATION, RULE OR STANDARD.
v. High Risk Activities. THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING WITHOUT LIMITATION, IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR PROPERTY DAMAGE (COLLECTIVELY, “HIGH-RISK ACTIVITIES”). SUPPLIER EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH HIGH-RISK ACTIVITIES.
9. Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL SUPPLIER, OR ITS SUPPLIERS, LICENSORS, SUCCESSORS OR ASSIGNS, BE LIABLE TO USER OR TO ANY OF ITS CLIENTS FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE OR OTHER PECUNIARY LOSS), ARISING OUT OF THIS AGREEMENT, THE SUPPLIER EULA, OR THE USE OR INABILITY TO USE THE SOFTWARE AND/OR THE CONTENT MATERIALS, EVEN IF SUPPLIER HAS BEEN ADVISED OF OR OTHERWISE HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL SUPPLIER’S TOTAL LIABILITY TO USER FOR ALL DAMAGES IN ANY ONE OR MORE CAUSES OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNTS PAID BY USER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACCRUAL OF THE CAUSE OF ACTION FOR WHICH SUCH DAMAGES ARE ALLEGED TO BE OWED. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. U.S. Government Restricted Rights
The Software is a “commercial item”, as that term is defined at 48 CFR 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation”, as such terms are used in 48 CFR 12.212 (Sept. 1995). Consistent with 48 CFR 12.212 and 48 CFR 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government users acquire the Software with only those rights set forth herein.
11. Export Restrictions
User or End User’s may not download, export or re-export any software received hereunder, regardless of the manner in which received: (i) into, or to a national or resident of, any country to which the United States has embargoed goods; or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. Accordingly, User hereby represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list. User acknowledges that User and End User is solely responsible for complying with any and all government export and other applicable laws and that Supplier has no further responsibility with respect thereto.
12. Confidentiality and Non-Circumvention
a. Confidentiality Obligations
The Parties hereby acknowledge and agree that, in performing their respective duties and obligations under this Agreement, each Party may have access to or be provided certain confidential or proprietary information of the other. For purposes of this Agreement, “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known in the relevant trade or industry and which has been or is hereafter disclosed or made available by either Party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with this Agreement, including: (i) all trade secrets; (ii) existing or contemplated products, services, designs, technology, processes, technical data, engineering, techniques, methodologies and concepts and any information related thereto; and (iii) information relating to business plans, sales or marketing methods and customer lists or requirements. The Receiving Party agrees that no such Confidential Information supplied by the Disclosing Party will be: (a) used by the Receiving Party for any purpose whatsoever except as expressly contemplated under this Agreement; or (b) disclosed to any non-party to this Agreement unless the Disclosing Party consents to such disclosure in writing or such disclosure is otherwise required by law. The Receiving Party further agrees to make all reasonable efforts to maintain the secrecy and confidentiality of the Disclosing Party’s Confidential Information; such reasonable efforts shall include, but not be limited to, the same level of protection the Receiving Party affords its own confidential and proprietary information of a similar kind or nature, but not less than a commercially reasonable degree of care. In the event that the Parties enter into a separate written confidentiality or non-disclosure agreement, such separate agreement shall be controlling with regard to the duties of confidentiality and non-disclosure owed by the Parties to each other.
b. Exceptions
“Confidential Information” shall not include information that the Receiving Party can demonstrate: (i) was in its possession at the time of disclosure and without restriction as to confidentiality; (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party; (iii) has been received from a third party without breaching any confidentiality obligation owed by the third party; or (iv) is independently developed or created by the Receiving Party without regard to the Confidential Information of the Disclosing Party. In addition, the Receiving Party may disclose the Disclosing Party’s Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it or otherwise in order to comply with applicable laws, provided that the Receiving Party: (a) gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy; (b) discloses only such much of the Disclosing Party’s Confidential Information as is required by the governmental entity; and (c) uses commercially reasonable efforts to obtain confidential treatment for any of the Confidential Information of the Disclosing Party so disclosed.
c. Return of Confidential Information
i. Upon the expiration or termination of this Agreement, or at any time upon request of the Disclosing Party, the Receiving Party will promptly return all items and materials, including any copies, in its possession, custody, or control which contain any of the Disclosing Party’s Confidential Information. All notes or other work product containing the Disclosing Party’s Confidential Information will be destroyed, and such destruction will be certified in writing to the Disclosing Party by an authorized representative of the Receiving Party who supervised such destruction. Notwithstanding the preceding sentence, Supplier may retain an internal record regarding User’s and/or its clients’ use of the Software and/or the Content Materials for Supplier’s internal, archival use.
ii. The obligations of the Receiving Party concerning the Disclosing Party’s Confidential Information as set forth herein will, subject to Section 11.b. above, survive the expiration or termination of this Agreement for a period of three (3) years following such termination or expiration, provided that, with respect to any portion of the Disclosing Party’s Confidential Information that constitutes the trade secret information of the Disclosing Party, the Receiving Party’s obligations of non-use and confidentiality with respect to such trade secret information shall continue for so long as such information remains a trade secret of the Disclosing Party.
d. Data Security and Privacy
i. Supplier shall implement and maintain industry standard administrative, physical, and technical safeguards for the protection of the availability, security, confidentiality and integrity of the Software and any associated servers, systems, and databases.
ii. In providing the Software hereunder, Supplier may have access to or otherwise be exposed to Personal Data. For purposes of this Agreement, “Personal Data” means all information disclosed to Supplier or to which Supplier has access to under this Agreement regarding a living individual in a form that can be used to identify such individual, directly or indirectly, by reference to an identification number or to one or more factors specific to such individual’s physical, personal, physiological, mental, economic, cultural or social identity. Supplier shall use and/or process Personal Data as follows:
(1) Supplier shall process and/or use Personal Data solely in connection with its obligations and responsibilities under this Agreement and for no other purpose. In particular, Supplier shall not sell, license, lease, or otherwise transfer any Personal Data to any third party except as otherwise expressly authorized by User in writing.
(2) Supplier shall protect the confidentiality and security of Personal Data through the use of industry standard security measures used to protect data of a similar kind or nature. Supplier shall inform User of any unauthorized use or disclosure of Personal Data of which Supplier becomes aware and shall cooperate with and assist User in remediating any such unauthorized use or disclosure.
(3) Supplier shall, during the Term of this Agreement, comply with all applicable laws concerning the processing and/or use of Personal Data, including without limitation all applicable laws concerning the privacy, security and/or use of Personal Data.
13. Indemnity
a. By User
User shall indemnify, defend and hold harmless Supplier, its licensors, successors, and assigns, and each of their respective officers, directors, agents, and employees, for, from and against any and all claims, demands, loss, damage, liability, or expense (including, but not limited to, attorneys’ fees and legal costs at trial, on appeal, and on any petition for review), arising out of or related to: (i) the breach of this Agreement by User and/or its clients; (ii) the misuse and/or unauthorized use of the Software and/or the Content Materials by User and/or its clients; (iii) the Loaded Content, including without limitation, any third party claim that the Loaded Content infringes, misappropriates or otherwise violates the intellectual property rights or other proprietary rights of any third party; (iv) the failure by User, its clients, employees, agents and representatives to comply with applicable laws; and (v) the negligence or more willful misconduct, acts or omissions on the part of User, its clients, employees, agents and/or representatives.
b. By Supplier
Supplier shall indemnify, defend and hold harmless User, and each of its clients, officers, directors, agents and employees (the “User Indemnitees”) for, from, and against any and all claims, demands, loss, damage, unauthorized use or disclosure of Personal Data or Loaded Content, liability, or expense (including, but not limited to, attorneys’ fees and legal costs at trial, on appeal, and on any petition for review), including any third party claim arising out of or related to (collectively, “Claims”): (i) the negligence or more willful misconduct of Supplier, its employees, agents and/or representatives; or (ii) any claim or allegation that the Software and/or the Content Materials infringe, misappropriate or otherwise violate the intellectual property rights or other proprietary rights of any third party. Notwithstanding the preceding sentence, User acknowledges and agrees that Supplier shall not be obligated to indemnify, defend or hold harmless the User Indemnitees, for, from or against any Claim(s): (i) unless User provides to Supplier: (a) 30 days written notice of the Claim for which indemnity is owed; (b) sole control and authority over the defense and/or settlement of such Claim; and (c) reasonable cooperation and assistance in connection with Supplier’s defense and/or settlement of such Claim; and (ii) to the extent the Claim arises from or relates to: (a) the breach of this Agreement by User and/or its clients; (b) the misuse and/or any unauthorized use of the Software and/or the Content Materials by User and/or its clients; (c) the Loaded Content, including without limitation, any third party claim that the Loaded Content infringes, misappropriates or otherwise violates the intellectual property rights or other proprietary rights of any third party; (d) the failure by User, its clients, employees, agents and representatives to comply with applicable laws; and (e) the negligence or more willful misconduct, acts or omissions on the part of User, its clients, employees, agents and/or representatives.
14. Contracts
a. User Contracts with End Users
User shall ensure that all contracts and agreements between User and/or its End Users with respect to the Software and/or the Content Materials strictly conform to the terms of this Agreement, and that any such contracts and agreements fully protect Supplier, its licensors, successors and assigns from any and all liability for User’s and/or its End Users’ use of the Software and/or the Content Materials. Supplier has the right, upon written demand, to be provided and inspect copies of all contracts and agreements entered into between User and its End Users with respect to the Software and/or the Content Materials.
b. Supplier End User License Agreement
Notwithstanding Section 14.a above, User acknowledges and agrees that all Clients accessing and/or using the Software and/or the Content Materials are required to agree to and accept Supplier’s standard End User License Agreement, as amended from time to time (the “Supplier EULA”). User shall ensure that its Clients at all times strictly comply with the terms of the Supplier EULA, and User further acknowledges and agrees that any breach by a Client of the Supplier EULA shall be deemed a breach by User.
15. Term and Termination
a. Term
This Agreement will commence as of the Effective Date and will continue in effect for the period set forth in the Order Form, unless earlier terminated as set forth in this Agreement (the “Term”).
b. Termination
This Agreement may be terminated as follows:
i. Either Party may terminate this Agreement in the event of any breach of any material term of this Agreement by the other Party, subject to the non-breaching Party giving written notice to the other of the breach. In the event the breaching Party fails to cure the breach within thirty (30) days of such written notice, or otherwise fails to make substantial progress toward curing the breach if it cannot be cured within such thirty (30) day period, the non-breaching Party may terminate this Agreement by providing written notice of termination to the breaching Party.
ii. Either Party may terminate this Agreement, upon written notice to the other effective immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
iii. In the event that any interruption of service constantly reoccurs to the point that User and its clients are not able to access or otherwise use the software to obtain the benefit intended (“Chronic Service Availability Failure”) User shall notify Supplier and if after sixty (60) days from the date of notification Supplier has not been able to resolve the Chronic Service Availability Failure, User shall have right to terminate the Agreement without penalty.
c. Post Termination/Expiration
The Parties shall have the following rights and/or responsibilities following the termination or expiration of this Agreement:
i. The termination or expiration of this Agreement shall be without prejudice to any rights or remedies which the either Party may have under Colorado law, including all rights and/or remedies that may have accrued prior to the effective date of such termination or expiration.
ii. Upon the termination or expiration of this Agreement, User must cease all use of the Software, destroy all copies of any Content Materials and/or User Documentation then in User’s possession or control, and take such other actions as Supplier may reasonably request to ensure that no copies of the Content Materials and/or User Documentation remain in User’s possession or control.
iii. Upon termination or expiration of this Agreement for any reason, Supplier shall return and submit to User, and to any clients upon User’s request, any Loaded Content in a mutually agreeable format and within a reasonable period of time, provided that: (a) User is current as to all amounts owed to Supplier as of the effective date of termination or expiration; and (b) Supplier shall have the right to charge User at its then current hourly rates.
iv. The following provisions shall survive the termination or expiration of this Agreement: Sections 1, 3, 5, 6, 7, 8, 9, 10, 11, 12, 18, 19, and 20.
16. Remedial Action
a. Right to Suspend
Without limiting the above, Supplier may suspend delivery of the Software and/or the Content Materials if it reasonably determines that User and/or its clients are not in compliance with this Agreement. Such suspension shall only be directed to the Client who is alleged to be in non-compliance and not to User or any other End User. If delivery is suspended, Supplier will restore access as soon as User and/or its clients come back into compliance with the terms of this Agreement. Supplier’s suspension of the Software and/or the Content Materials is without prejudice to any right, claim or remedy of Supplier under this Agreement, including without limitation, Supplier’s rights under Section 14 above.
b. Equitable Relief
User hereby acknowledges and agrees that, in the event of any breach or threatened breach of User’s obligations or responsibilities under Sections 3, 7 and 11 above or any other provision affecting Supplier’s and/or its licensors’ intellectual property rights in the Software and/or the Content Materials, Supplier may suffer irreparable injury for which damages at law may not be an adequate remedy. Accordingly, without prejudice to any other rights and remedies otherwise available to Supplier at law or equity, Supplier shall be entitled to seek equitable relief, including injunctive relief and specific performance, for any such breach or threatened breach of this Agreement.
17. Force Majeure
A Party to this Agreement may be excused from any performance required herein if such performance is rendered impossible or unfeasible due to any catastrophe or other major event beyond its reasonable control, including, without limitation, acts of terror, acts of war (whether war is declared or not), riot, and insurrection; laws, proclamations, edicts, ordinances, or regulations; embargoes, strikes, lockouts, or other serious labor disputes; and floods, fires, explosions, or other natural disasters, acts of God or acts, omissions or delays in acting by any governmental authority or other third party. When such events have abated, the non-performing Party’s obligations herein shall resume.
18. General
a. The relationship of the Parties under this Agreement is that of vendor and customer, and this Agreement will not be construed to create a partnership, joint venture, agency, franchise, employment, or any other relationship between Supplier and User. User will not represent itself to be an employee, representative, or agent of Supplier. User will have no authority to enter into any agreement on Supplier’s behalf or in Supplier’s name or otherwise bind Supplier to any agreement or obligation.
b. This Agreement is governed by the laws of the United States and the State of Colorado, without reference to its conflict of laws principles.
c. This Agreement is the entire agreement between User and Supplier and supersedes any other communications or advertising with respect to the Software. If any provision of this Agreement is held invalid, the remainder of this Agreement will continue in full force and effect.
d. No provision hereof shall be deemed waived or modified except in a written addendum signed by an authorized representative of Supplier and User.
e. If any legal action, including arbitration, is required in order to enforce or interpret any of the provisions of this Agreement, the prevailing Party in such action will recover all reasonable costs and expenses, including attorney fees, incurred in connection therewith and on any appeal.
f. Excepts as provided and contemplated herein with respect to User’s clients User may not assign or transfer this Agreement, or otherwise delegate any of its rights, obligations and responsibilities hereunder without the express written consent of Supplier, which Supplier may withhold or refuse in its sole and absolute discretion.
A Change of Control on the part of User shall be deemed an assignment or transfer and, in such event, Supplier may terminate this Agreement without any penalty.
This Agreement shall be binding upon and inure to the benefit of Supplier’s successors and assigns and User’s End Users.
19. Publicity Rights.
Client agrees to a press release announcing this Agreement within ten (10) working days of the execution of this Agreement, subject to review and approval of the release by the Client. Supplier may include Client’s name and logo among its list of customers and may include a brief description of the Product(s), Solutions, and Services furnished hereunder. KPA may also reference Client and Client solution in promotional materials produced at KPA’s expense that include but are not limited to (i) press releases, (ii) images, (iii) solution description, (iv) interviews, and (v) published articles and reports. Client also agrees to allow KPA to use metrics generated and other benefits resulting from the deployment of Product(s), Solutions, and Services for promotional purposes.
20. Notices
Any notice required or permitted under the terms of this Agreement, or by law, shall be in writing and may be given by personal delivery or certified mail, directed to the Parties, or in any other manner authorized by law.
Any notice given shall be effective when received or if given by certified mail, then 48 hours after the deposit of such notice in the United States mail with postage prepaid.
21. Authority to Execute Agreement
By accepting this Agreement, User indicates that: (i) User understands this Agreement; (ii) User has read it; (iii) User has had the opportunity to have this Agreement reviewed by an attorney or other advisor of choice; (iv) User fully understands the meaning of all its terms and conditions; (v) User agrees to its terms and conditions; and (vi) any individual signing this Agreement on User’s behalf has the authority to execute this Agreement and bind User to its terms.
22. Alternative Dispute Resolution
Any controversy or claim arising out of or relating to this Agreement or its subject matter, or any breach of this Agreement, will be subject to binding arbitration under the commercial rules of JAMS and, if permitted by JAMS, by a single arbitrator, in Denver Colorado. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
a. Payment of Arbitration Costs
The Company and Employee shall each pay one half of the costs of the arbitration. Each Party shall pay the costs for their witnesses, expert witness fees, or deposition expenses. Each party shall be responsible for their own attorney’s fees in any arbitration and the arbitrator shall not have the authority to award fees to the prevailing party. Provided, however, if a statute specifically permits attorneys’ fees to be awarded then the arbitrator has the authority to award fees in accordance with such statute. At the conclusion of arbitration, the arbitrator may award the prevailing party some or all the arbitration costs.
b. Scope of Arbitration
To the broadest extent permitted by law, the parties agree to submit all their disputes and claims regarding this Agreement, the termination thereof and any related matters. If the law does not permit binding arbitration of a dispute or claim, then the parties agree there shall be no arbitration of that dispute. The parties preserve their rights to seek provisional remedies under Colorado law.
c. Arbitrator’s Powers
The arbitrator shall have the powers provided in Colorado law.
d. Remedies.
The parties shall have the remedies they would be entitled if the action proceeded in court. The arbitration shall apply and be governed by Colorado law.
Effective March 1, 2022
