SOFTWARE LICENSE AGREEMENT
Last updated: March 22, 2022
This Software License Agreement (including any applicable Order, this “Agreement”) governs Licensee’s access to and use of Kimley-Horn Technology Solutions, Inc. (“KHTS”) software, which is provided or otherwise made available by KHTS or by an authorized KHTS reseller (“Reseller”).
This Agreement is a legally binding contract between KHTS and the licensee accepting this Agreement (“Licensee”) by either: (a) signing this Agreement or signing an Order that refers to this Agreement, (b) clicking on an “Accept” button or otherwise indicating acceptance of this Agreement when accessing the Software or Service, and/or (c) using the Software or Services. The individual accepting this Agreement on behalf of Licensee represents that he or she has the authority to enter into this Agreement and bind Licensee.
If Licensee does not agree to be bound by the terms of this Agreement, then KHTS does not grant Licensee a license to the Software.
The following defined terms have the meanings indicated below. Other capitalized terms have the meaning assigned to them elsewhere in this Agreement.
- (a) “Authorized User” means any current Licensee employee or contractor who is provided access to the Software in accordance with this Agreement and the Documentation.
- (b) “Documentation” means the user manuals, operating manuals, and/or other documentation delivered or otherwise made available by KHTS for use with the Software and the Services.
- (c) “Hosted Services” means delivery of the Software to Licensee on a hosted, software-as-a-service basis.
- (d) “KHTS Content” means content and data owned by KHTS, a KHTS affiliate, or their suppliers, and that is provided to Licensee through the use of the Software.
- (e) “Licensee Data” means all data uploaded or otherwise provided to KHTS by Licensee and its Authorized Users by or through use of the Software.
- (f) “Licensee-Supplied Components” mean the data sources, third-party software, hardware, connectivity, minimum internet speeds, and other items that Licensee provides or is required to provide for use of the Software. The Licensee-Supplied Components are specified in the Documentation, the Order, and/or the Statement of Work.
- (g) “License Term” means the term for the license as specified in the Order.
- (h) “On-Premise License” means a license for Licensee to use the Software on Licensee premises or in a secure cloud infrastructure controlled by Licensee, or at a location(s) mutually agreed by the parties in the Order.
- (i) “Order” means an order form, proposal, statement of work, or other document that is signed or electronically accepted by KHTS (or by its Reseller or agent) and Licensee, that references this Agreement and that specifies as applicable the Software, the License Term, whether the Software is licensed for use as a Hosted Service or as an On-Premise License, any Services provided, fees, usage limitations, and other terms and restrictions.
- (j) “Technical Services” mean the setup, training, implementation, custom integration, custom report building, and other technical services provided by KHTS or Reseller, as agreed by the parties in an Order.
- (k) “Services” mean, collectively and as applicable, the Hosted Service, the Technical Services, and the Support and Maintenance Services.
- (l) “Software” means the proprietary KHTS software products that are agreed in an Order to be licensed under this Agreement, as well as all new releases, enhancements, updates and error corrections thereto, and all Custom Developments, provided to Licensee under this Agreement and including all associated KHTS Content and Documentation. For clarity, Licensee will have no rights to any new Software modules or enhancements that are separately priced by KHTS or its Reseller unless Licensee has paid for and acquired for licenses to such new Software modules/enhancements.
- (m) “Statistical Data” means statistical, meta, usage and other operational data and information related to Licensee’s use of the Software and Services, including statistical and performance information related to the provision, operation or improvement of the Software and Services. Statistical Data will not include any personally identifiable information.
- (n) “Support and Maintenance Services” mean the support and maintenance services provided under this Agreement.
2. License and Related Terms
- (a) License. Subject to the terms of this Agreement including the payment of all applicable fees, KHTS hereby grants Licensee the non-exclusive, non-transferable, and non-sublicensable right and license to use and access the Software (in executable code form only) and the Services during the License Term solely for the internal purposes of Licensee. The Order may contain limitations on the number of Authorized Users, locations of the Software, number of licensed instances of the Software, the projects with which the Software may be used, and/or other limitations on Licensee’s use of the Software. Licensee agrees to use the Software and Services in compliance with all applicable laws, the Documentation, the Order, and this Agreement. Licensee has no right to use test or “sandbox” instances of the Software unless expressly specified in the Order. Licensee may use and access Hosted Services solely through the website(s) specified by KHTS.
- (b) Authorized Users and Access Controls. Licensee may authorize its employees and contractors to be Authorized Users, per the procedures in this Agreement and the Documentation. Licensee shall use commercially reasonable efforts to prevent unauthorized access to the Software, and is responsible for identifying and authenticating all Authorized Users, for approving access by Authorized Users to the Software, for controlling against unauthorized access by Authorized Users, and for maintaining the confidentiality of usernames, passwords and account information for Authorized Users. Licensee shall be fully responsible for use of the Software by Authorized Users and their compliance with all applicable laws, the Documentation, and the terms of this Agreement. Licensee is responsible for authorizing Authorized Users and for revoking authorization if Authorized Users no longer work for Licensee.
- (c) Restrictions. The Software and Services may be used solely by Authorized Users for lawful purposes. Licensee shall not (and will not permit any Authorized User or third party to): (a) use the Software or Services to store or transmit infringing, libelous, malicious, or unlawful materials, including any malicious code, viruses, worms, trojan horses, attacker tools or programs that are intended to compromise the confidentiality, integrity, or availability of the data, applications, or operating system of any computer system; (b) use the Software or Services for any unlawful purpose; (c) interfere with or disrupt the integrity or performance of the Software or Services or related data; (d) attempt to gain unauthorized access to the Software or Services or related data, systems or networks; (e) modify, adapt, reverse engineer, decompile, translate or disassemble the the Software or Services in whole or in part; (f) create or develop any products or services that compete with the Software or Services; (g) use the Software or Services or any output thereof for the benefit of or for performing work for any third party; or (h) access, use, copy, modify or distribute any KHTS Content other than through the interfaces supplied by the Software. For On-Premise Licenses only, Licensee may make a reasonable number of backup copies of the Software, but otherwise Licensee may not make any copies of the Software.
- (d) Updates. Licensee acknowledges and agrees that KHTS may, from time to time, modify and update the Software and Services. No update to the Software or Services will materially reduce, in the aggregate, the functionality in the Software or Services as of the Effective Date. In some cases, Technical Services and associated fees will be required in order to deploy updates for On-Premise Licenses. For Hosted Services, KHTS will perform updates outside of normal business hours (9:00 am – 5:00 pm on non-holiday weekdays, eastern time). Licensee agrees to install updates for On-Premise Licenses within a reasonable time after receipt of the updates (not to exceed 60 days).
- (e) Licensee Obligations. Licensee shall: (i) be responsible for the Licensee-Supplied Components, whether operated directly by Licensee or through third-party service providers, including all systems and databases that connect with or interface to the Software or Services; (ii) be responsible for the accuracy and completeness of all Licensee Data; (iii) employ physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to prevent unauthorized access to or use of the Software or Services; (iv) notify KHTS immediately of any unauthorized access to or use of the Software or Services, or any other known or suspected breach of security, and (v) use reasonable efforts to immediately stop unauthorized access to the Software or Services that is known or suspected by Licensee.
- (f) Feedback. Licensee grants to KHTS the irrevocable, perpetual, royalty-free, transferable, and sublicensable right to use feedback regarding any suggested improvements to the Services and/or Software provided by Licensee for any purpose, including without limitation to modify, supplement, or improve the Services and/or Software, without payment or compensation to Licensee.
- (g) Access. As reasonably necessary for KHTS to provide Services and/or to confirm Licensee’s compliance with the terms of this Agreement, Licensee will provide KHTS with access to Software deployed per an On-Premise License, using a VPN (virtual private network) or other agreed means of access.
- (h) Third-Party Software and Data Sources. The Documentation contains information on certain open source and other third-party software that is included with or incorporated into the Software (“Third-Party Software”). For On-Premise Licenses, certain open source Third-Party Software is licensed directly by Licensee pursuant to the public licenses associated with such software. KHTS PROVIDES THIRD-PARTY SOFTWARE TO LICENSEE “AS IS.” The Software may also interface with or receive data from third-party software and services (the “Data Sources”). Notwithstanding anything to the contrary herein, KHTS makes no warranties or commitments regarding the operation of any Data Source or the availability, reliability or accuracy of any data supplied by Data Sources.
- (i) Software Communications and License Keys. The Software for On-Premise Licenses may include product activation and other technology designed to prevent unauthorized use and copying. This technology may cause the Software and associated hardware to automatically connect to an KHTS-hosted license server on a continual basis, may rely on license keys, and may prevent uses of the Software that are not permitted. Licensee consents to the transmission of Software usage information to KHTS and to KHTS’ use of license keys and other technology designed to prevent unauthorized use and copying, and Licensee agrees not to circumvent or attempt to circumvent any such anti-copying mechanisms.
- (j) Evaluation and Trial Licenses. If Licensee validly obtained a limited evaluation or trial or other no-fee license for the Software (“Evaluation Software“) in the Order, KHTS grants Licensee a personal, non-exclusive and non-transferable license to use, for the term of the evaluation/trial license and up to the quantity of licenses specified in the Order for the evaluation/trial, the executable code of the Evaluation Software solely for internal testing and evaluation and/or trial use. Section 9(b) below does not apply to Evaluation Software. Evaluation Software is provided “AS-IS”, without warranty of any kind.
- (a) Services Provider. The provider of Services may be either KHTS or Reseller, as specified in the Order. The term “KHTS” in this Section 3 shall mean either KHTS or Reseller, as applicable.
- (b) Technical Services. As set forth in an agreed Order, KHTS will provide Technical Services for Licensee. All Technical Services will be subject to the terms of this Agreement. If Licensee requests additional Technical Services, and KHTS agrees to provide such Technical Services, then KHTS will provide such Technical Services at KHTS’ then-current rate, unless other fee arrangements have been agreed upon.
- (c) Expenses. Licensee shall reimburse KHTS for all reasonable, pre-approved expenses incurred by KHTS in connection with this Agreement, including but not limited to mileage, airfare, lodging, and meals.
- (d) Intentionally Omitted.
- (e) Licensee Cooperation. Licensee shall reasonably cooperate with KHTS and its suppliers in the delivery of Services hereunder, including by providing KHTS and its suppliers with timely approvals and access to Licensee’s technical personnel, information, systems, and other items as reasonably requested by KHTS in connection with the delivery of Services.
- (f) Subcontractors. KHTS may use subcontractors to provide the Services. KHTS will be fully responsible for any breach of this Agreement by any KHTS subcontractors.
4. Term and Termination
- (a) License and Services Term. This Agreement and the Order will remain in effect until terminated as set forth herein. The Order shall specify the License Term and/or the term for any Services. A License Term may be either perpetual or for a limited period (e.g., three years). If a limited term is specified for the license or for Services, then such term shall automatically renew after the initial term for successive annual renewal terms, unless either party provides written notice of termination to the other party at least three (3) months prior to the end of the then-current term. License/Services fees and other costs may be increased, or renegotiated by the parties, for any renewal term.
- (b) Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach is not cured after thirty (30) days written notice.
- (c) Bankruptcy. Either party may terminate this Agreement if: (i) the other party has a receiver or administrative receiver appointed over its assets; (ii) the other party’s governing body passes a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation, reconstruction, or merger), or a court of competent jurisdiction enters an order to that effect; (iii) the other party makes a general assignment for the benefit of creditors (iv) the other party ceases or threatens to cease to carry on business; (v) the other party is generally not paying its debts as they become due; or (vi) the other party is the subject of any petition under any bankruptcy or other law for the protection of debtors, except an involuntary petition that is dismissed within sixty (60) days after filing.
- (d) Suspension. KHTS may suspend the Services, in whole or in part, or suspend Licensee’s access to the Software, without liability, if: (a) Licensee is interfering with or disrupting the integrity or performance of the Software or Services or related data or is otherwise in material breach of this Agreement in a manner causing problems with the delivery of the Software or Services to Licensee or any other licensee; (b) KHTS reasonably believes Licensee’s use of the Software or Services violates applicable law or KHTS is otherwise required to suspend Licensee’s access to the Software or Services by a law enforcement agency or court order; (d) there is an attack or a security incident affecting the Software or Services or an event occurs that KHTS reasonably believes poses a threat to the integrity or security of the Services; (e) an Authorized User fails to comply with this Agreement or attempts to use the Software or Services beyond the scope of the rights granted or for a purpose not authorized, including access that is reasonably suspected to be fraudulent, misleading or unlawful, or (f) KHTS or its Reseller does not receive fees relating to the delivery of the Software or Services not disputed in good faith when due and does not cure such failure within ten (10) business days after written notice thereof. During any suspension, the Services and/or Software may not be available in whole or in part and Licensee may not have access to Licensee Data. KHTS or its Reseller may include in any invoice Licensee’s or Reseller’s continuing fees during a suspension. KHTS shall have no liability for any damage or other consequences that may result from a suspension.
- (e) Surviving Terms. Termination of this Agreement will not affect any accrued rights or liabilities of either party. The following sections of this Agreement shall survive termination or expiration of this Agreement: 1 (Definitions); 5(e) (Surviving Terms), 5(f) (Return and Deletion of Licensee Data), 5(g) (Payment Obligations on Termination), 6 (Fees and Payment), 7 (Intellectual Property); 8 (Confidentiality); 10(c) (Warranty Disclaimer); 11 (Limitation of Liability); 12 (Assignment); 13 (Entire Agreement), and 16 (Additional Terms). Within five (5) business days after termination of this Agreement, Licensee shall return or erase all copies of all Software and Documentation provided by KHTS to Licensee hereunder that are in Licensee’s possession or control.
- (f) Return and Deletion of Licensee Data. Upon Licensee’s request made within thirty (30) days after termination of this Agreement, and for a mutually agreed fee, KHTS will deliver to Licensee or its designees a copy of Licensee Data held by KHTS in a Hosted Service, in a mutually agreed format. Unless otherwise agreed in writing by the parties or required by applicable law, KHTS will delete and erase all Licensee Data in KHTS’ possession or control after thirty (30) days after termination of this Agreement. Notwithstanding the foregoing, Licensee acknowledges that KHTS’ backup systems may automatically retain backup copies of Licensee Data. To the extent that KHTS’ backup systems create backup copies of Licensee Data, KHTS may retain such backup copies for the period that KHTS normally retains such backup copies. These backup copies are subject to the provisions of this Agreement until they are destroyed or erased.
- (g) Payment Obligations on Termination. Upon termination, Licensee shall promptly pay all outstanding amounts due under this Agreement up to the effective date of termination. In addition, if this Agreement is terminated by KHTS per Section 5(b) or 5(c), or if Licensee terminates this Agreement without cause, then all subscription and/or license fees due for the remainder of the License Term or Services term shall become immediately due and payable by Licensee as liquidated damages, without any further demand by KHTS or Reseller. The parties acknowledge that KHTS’ actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of KHTS’ potential losses.
5. Fees and Payment.
Except to the extent otherwise set forth in the Order, the following fee and payment terms shall apply:
- (a) Fees and Payment Terms. Licensee shall pay KHTS or Reseller the amounts set forth in the Order. All payments under this Agreement shall be: (i) due within thirty (30) calendar days of receipt of invoice, (ii) made in United States dollars and (iii) non-refundable. All payments not submitted when due (except for payments timely disputed in good faith) will be subject to interest at the rate of 1% monthly, or the maximum amount allowed by applicable law if lower, calculated from the date when payment becomes overdue until payment is made. If Licensee disputes any invoice amounts, it must do so in good faith, provide KHTS or Reseller with reasons for such dispute within thirty (30) calendar days of receipt of the invoice, pay any undisputed portion of such invoice, and negotiate with KHTS or Reseller in good faith a resolution of such dispute.
- (b) Taxes. Licensee shall pay all federal, state, local and other taxes based on this Agreement or the Services, excluding taxes based on KHTS’ and Reseller’s net income. If Licensee claims tax-exempt status for any purpose in connection with this Agreement, Licensee represents and warrants that it is a tax-exempt entity and will provide KHTS or Reseller upon request with a correct copy of Licensee’s tax-exempt certification.
6. API Terms
- (a) API Limits. The Software may include one or more application programming interfaces and/or software development kits ( “API’s”). KHTS may, from time to time, set and update limits on Licensee’s usage of the API’s, including limits on API calls and requests and access to data (the “API Limits”). The API Limits will be described in the Documentation and may be updated from time to time. Licensee agrees to comply with all API Limits and further agrees that it will not use the API’s in a manner that constitutes excessive or abusive usage, or otherwise is in breach with the terms of this Agreement. Licensee agrees not to use the API’s in a manner that competes with the Services or the Software, or that provides API functionality to third parties. Licensee will not circumvent or attempt to circumvent any API Limits.
- (b) Updates. KHTS may update the API’s from time to time without notice to Licensee. Licensee acknowledges and agrees that such updates may cause issues with any scripts, code or programs previously written with use of the API’s (the “Licensee Code”), and that it is Licensee’s sole responsibility to update any Licensee Code. KHTS does not guarantee backwards compatibility when it updates the API’s.
- (c) Indemnification for API Usage. Licensee shall defend, indemnify, and hold KHTS harmless arising from all loss, damages, claims, actions, proceedings and expenses arising out of or related to Licensee’s and/or any Authorized Users’ use of Licensee Code. KHTS has no liability or responsibility for mistakes or actions caused by Licensee Code, and/or any errors, misuse or unintended use associated with Licensee’s or any Authorized User’s use of the API’s or Licensee Code.
7. Intellectual Property
- (a) Ownership. Licensee agrees that KHTS and its third-party licensors and suppliers own all right, title and interest, including copyright, patent, trademark, trade secret, and all other intellectual property rights, in the Software, Services, and Statistical Data (including the look and feel, algorithms, database structures, methodologies, and know-how associated with the Services and Software) and any and all copies. All Services and Software updates made available to Licensee under this Agreement shall be deemed part of the Services and Software and shall be subject to the terms of this Agreement.
- (b) Developments. If KHTS or its Reseller creates any modified or new Software, Documentation, or other software-related items, improvements or enhancements (“Developments”) for Licensee (“Custom Developments”), Licensee agrees that KHTS shall own and retain all right, title and interest in such Custom Developments. Custom Developments will be subject to the same license grant provided to Licensee in this Agreement for use of the Software and same License Term. If Licensee creates any Developments that are based on or otherwise interface with the Software (“Licensee-Created Developments”), Licensee shall own and retain all right, title and interest in such Licensee-Created Developments, and Licensee grants KHTS a worldwide, nonexclusive, royalty-free right and license to use and copy the Licensee-Created Developments as necessary to provide Services for Licensee. In addition, Licensee acknowledges and agrees that KHTS may create and make available to its other licensees Software updates and Developments that contain the same or similar functionality as Licensee-Created Developments, and Licensee agrees not to assert any rights against KHTS to prevent or restrict the foregoing. Licensee further acknowledges and agrees that Licensee-Created Developments may require an ongoing active license to KHTS Software in order to be functional.
- (c) Licensee Data. Licensee shall own and retain all intellectual property rights in and to Licensee Data. Licensee hereby grants to KHTS and as applicable Reseller a nonexclusive, royalty-free license during the Term to use, process and transmit Licensee Data for the purpose of providing the Services to Licensee. Licensee represents and warrants that it has obtained all consents and licenses required for KHTS use, collect, store and transmit Licensee Data in connection with the Services.
- (d) Notices. Licensee agrees to reproduce all copyright and other notices in each copy of the Documentation and Software made by Licensee, and further agrees not to modify or delete any such notices in the Documentation and Software.
- (e) Certification and Inspection. Licensee agrees that within thirty (30) days of a written request from KHTS or KHTS’ authorized representative, Licensee will certify that Licensee’s use of the Software and Services conforms to this Agreement and will provide supporting documentation.
- (a) Definition. “Confidential Information” means any information or data (including any formula, pattern, compilation, program, device, method, technique, or process) that is disclosed by one party (a disclosing party) to the other party (a receiving party) pursuant to this Agreement. Confidential Information of KHTS includes, but is not limited to, the Software, as well as the structure, organization, design, algorithms, templates, data models, data structures, flow charts, logic flow, and screen displays associated with the Software; and KHTS’ non-public pricing, sales, implementation, and training materials and procedures. Confidential Information does not include information that: (i) is or becomes publicly known or available without breach of this Agreement; (ii) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (iii) was previously known by the receiving party as shown by its written records. The terms of this Agreement (including information relating to the negotiation of this Agreement) is the Confidential Information of KHTS.
- (b) Confidentiality Obligations. A receiving party agrees: (i) to hold the disclosing party’s Confidential Information in strict confidence; and (ii) except as expressly authorized by this Agreement, not to use, disclose, or copy the Confidential Information. Without limiting the foregoing, Licensee shall disclose and allow access to the Software and Services only for the purpose of supporting Licensee’s license to use the Software and Services. Licensee acknowledges that KHTS may use Licensee’s Confidential Information for the proper management and administration of KHTS, including use for quality improvement, enhancement of products, support, and system maintenance purposes. A receiving party may disclose Confidential Information of the disclosing party as required by law or court order; in such event, such party shall inform the other party as soon as practicable, prior to any such required disclosure. Without limiting any of the foregoing, Licensee expressly acknowledges and agrees that it shall not permit any third party, nor any employee, representative or agent thereof, that develops, markets or licenses software or services with functionality similar to the functionality of the Services or Software to have access to the Services or Software or to any trade secrets and confidential information therein.
- (c) Remedies. Each party acknowledges and agrees that any violation of this Section may cause such party irreparable injury for which such party would have no adequate remedy at law and that such party shall be entitled to preliminary and other injunctive relief against the other party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that such party may have at law or in equity.
- (d) Termination. Upon the termination or expiration of this Agreement, the receiving party will either return to the disclosing party or destroy all the Confidential Information delivered or disclosed to the receiving party, together with all copies in existence thereof at any time made by the receiving party.
- (a) Authority. Each party warrants that it has full authority to enter into this Agreement and is not bound by any contractual or legal restrictions from fulfilling its obligations hereunder.
- (b) KHTS Warranties. KHTS warrants: (i) that the Software will substantially conform to the specifications contained in the applicable Documentation for a period of thirty (30) days after the Software is available for Licensee use, and (ii) that the Services will be provided in a professional and workmanlike manner. Any allegation of breach of a warranty in this Section 9(b) must be made within thirty (30) days after availability of the Software or delivery of Services, respectively, and Licensee’s sole remedy shall be as applicable correction of the Software and/or re-performance of such Services.
- (c) Licensee Warranty. Licensee warrants that Licensee has all necessary rights to provide KHTS with access and use of the Licensee Data and the Licensee-Supplied Components, as necessary for KHTS to provide Services to Licensee.
- (d) Disclaimer. KHTS does not warrant that the Software or Services will operate uninterruptedly or error-free or will be completely secure. Licensee is solely responsible for the Licensee Data, including its accuracy and completeness. The KHTS Content may contain nonconformities, defects, errors, or omissions. The successful operation of the Software and Services is dependent on Licensee’s delivery of the Licensee-Supplied Components and use of proper procedures and systems. KHTS is not responsible for errors or issues with any third-party software or systems not supplied by KHTS, including with respect to data communications issues with such software and systems. Licensee acknowledges that KHTS and its suppliers do not control the transfer of data over telecommunications facilities, including the Internet, and that Internet accessibility carries with it the risk that Licensee’s privacy, confidential information and property may be lost or compromised. The Software may consist of tools that assist with engineering tasks. Licensee acknowledges and agrees that the Software does not substitute for any engineering analysis and design, and KHTS does not provide engineering services. Licensee is solely responsible for verification of results obtained from the Software. KHTS DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL ACHIEVE ANY SPECIFIC RESULT, WILL MEET LICENSEE’S NEEDS, OR BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, KHTS AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; WARRANTIES OF NON-INFRINGEMENT; OR ANY WARRANTIES ARISING AS A RESULT OF LICENSEE USAGE IN THE TRADE OR BY COURSE OF DEALING.
10. LIMITATION OF LIABILITY. LICENSEE AGREES THAT THE AGGREGATE LIABILITY OF KHTS, ITS RESELLER, AND ANY OF THEIR SUPPLIERS RELATING TO THIS AGREEMENT, THE SOFTWARE, AND THE SERVICES SHALL BE LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY LICENSEE UNDER THIS AGREEMENT RELATING TO THE SOFTWARE OR SERVICES AT ISSUE DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE RELEVANT CAUSE OF ACTION ACCRUED. IN NO EVENT SHALL KHTS, ITS RESELLER, OR ANY OF THEIR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, COVER, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; ANY DAMAGES BASED ON INJURY TO PERSON OR PROPERTY OR DEATH; OR ANY LOST SALES, PROFITS OR DATA, EVEN IF KHTS IS TOLD THAT ANY OF SUCH DAMAGES MAY OCCUR. THE FEES CHARGED UNDER THIS AGREEMENT ARE CALCULATED WITH SPECIFIC REFERENCE TO THE LEVEL OF LIABILITIES UNDERTAKEN BY KHTS AND RESELLER HEREUNDER.
- (a) KHTS Indemnification. KHTS, at its expense, shall defend or at its option settle any third-party action, suit or proceeding brought against Licensee which alleges that Licensee’s authorized use of the Software infringes any third party copyright, trademark or patent in force in the United States, or misappropriates a third party trade secret enforceable in the United States, and shall pay damages finally awarded against Licensee and any settlement amount related thereto agreed in writing by KHTS, provided that (i) Licensee notifies KHTS promptly in writing of the claim, (ii) KHTS has sole control of the defense and all related settlement negotiations, and (iii) Licensee provides KHTS with all reasonable assistance, information and authority to perform the above at KHTS’ expense. Licensee shall have the right to participate in the defense or settlement with counsel of its own choosing at Licensee’s expense. The foregoing indemnity shall not apply to the extent that the alleged infringement is attributable to: (1) the combination of the Software with any products or services not provided by KHTS, (2) modification to the Software by Licensee or its agent, (3) use of the Software outside the permitted license rights in this Agreement, (4) use of Software by Licensee after being provided with an update to such Software that Licensee is made aware avoids the infringement issue, (5) any third-party code contained within the Software, (6) Licensee Data, or (7) Licensee’s specifications or instructions. THIS SECTION STATES KHTS’ SOLE LIABILITY TO LICENSEE WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
- (b) Licensee Indemnification. Licensee, at its expense, shall defend or at its option settle any third-party action, suit or proceeding brought against KHTS arising from or related to Licensee’s use of the Software or Hosted Services and shall pay damages finally awarded against KHTS and any settlement amount related thereto agreed in writing by Licensee, unless such claim is covered by Section 11(a) above or arises due to KHTS’ breach of this Agreement, provided that (i) KHTS notifies Licensee promptly in writing of the claim, (ii) Licensee has sole control of the defense and all related settlement negotiations, and (iii) KHTS provides Licensee with all reasonable assistance, information and authority to perform the above at Licensee’s expense. KHTS shall have the right to participate in the defense or settlement with counsel of its own choosing at KHTS’ expense.
12. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party; provided that either party may assign its rights and obligations under this Agreement without consent to (a) any affiliate of such party, or (b) any party acquiring all or substantially all of the assets or stock, by merger or otherwise, of such party or the relevant division of such party. Any permitted assignee must agree in writing to be bound by the terms of this Agreement.
13. Entire Agreement. The parties agree that this Agreement, including the Order and all terms incorporated herein by reference, is the complete and exclusive statement of the agreement between KHTS and Licensee, and supersedes any proposal, prior agreement, or license, oral or written, and any other communications relating to the subject matter of this Agreement. KHTS may from time to time update terms and other documents incorporated by reference herein, so long as those updates does not materially reduce any KHTS commitments therein. KHTS will use reasonable efforts to provide Licensee with notice of material changes to such terms or documents, which notice may be email or through a notice in the Hosted Service or Licensee support portal. In the event of any conflict between the terms of an Order and the terms of this Agreement, the terms of the Order shall take precedence. Except as expressly set forth herein, this Agreement may be modified only by means of a written amendment signed by authorized representatives of each party. The terms of any purchase order submitted by Licensee will not operate to modify or supplement any terms of this Agreement. The parties agree that there are no intended third-party beneficiaries under this Agreement.
14. Independent Contractor. The parties are independent contractors, and nothing contained herein shall be construed to create any other relationship between the parties. Nothing in this Agreement shall be construed to constitute either party as the agent of the other party for any purpose whatsoever, and neither party shall bind or attempt to bind the other party to any contract or the performance of any other obligation or represent to any third party that it has the right to enter into any binding obligation on the other party’s behalf.
15. Apple iOS Terms. The terms in this Section apply only to the extent that the Software is an app on an Apple iOS device (e.g., iPhone or iPad).
- (a) This Agreement is between Licensee and KHTS only, and not with Apple. In the event that this Agreement provides usage rules that are less restrictive than the Usage Rules set forth for apps in, or otherwise are in conflict with, the Apple App Store Terms and Conditions (which Licensee acknowledges it has had an opportunity to review), then the Apple App Store Terms and Conditions shall take precedence.
- (b) KHTS, not Apple, shall be solely responsible for any warranties herein. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the app, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be KHTS’ sole responsibility.
- (c) To the extent Licensee has any claim relating to the app, (a) KHTS, not Apple, is responsible for addressing any claims by Licensee or any third party relating to the app or Licensee’s possession and/or use of the app, including: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy or similar legislation, and (b) in the event of any third party claim that the app or your possession and use of the app infringes that third party’s intellectual property rights, to the extent that KHTS is required to provide indemnification under applicable law, KHTS, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Nothing in this Section shall be deemed an admission that Licensee may have any such claims.
- (d) The parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon Licensee’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Licensee as a third-party beneficiary thereof.
16. Additional Terms
- (a) Force Majeure. Except for Licensee’s payment obligations, each party shall be excused from performance and shall not be liable for any delay or failure to perform caused by events outside of its reasonable control, including the occurrence of, war, pandemic, terrorism, sabotage, insurrection, riot or other act of civil disobedience, labor disturbance or shortage, act of public enemy, failure of the Internet, failure of KHTS’ service providers that are not reasonably preventable by KHTS, act of any government affecting the terms hereof, explosion, flood or other act of God.
- (b) Choice of Law. This Agreement shall be construed in accordance with the internal laws of North Carolina without regard to its choice of law provisions, and all disputes shall have exclusive venue in the federal and state courts in Wake County, North Carolina, and both parties consent to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to this Agreement. If any term of this Agreement shall be found invalid, the term shall be modified or omitted to the extent necessary, and the remainder of this Agreement shall continue in full effect. In any action brought by a party related to this Agreement, the prevailing party shall be entitled to collect from the other party its reasonable litigation costs and attorney’s fees and expenses.
- (c) Logo. Licensee agrees that KHTS may use Licensee’s name and logo as part of a customer list in connection with KHTS’ and as applicable Reseller’s marketing activities, including on KHTS’ and Reseller’s web site. Any other publicity, press release, or case study involving Licensee and KHTS must be agreed in writing by the parties.
- (d) Export. Licensee acknowledges that the Software, Services and related technical data are subject to export restrictions under United States law. Licensee agrees to comply with all applicable United States and international export and import control laws, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by the United States and other governments.
- (e) Waiver; Severability; Counterparts. The waiver by either party of a breach of any provision of this Agreement shall not constitute or be construed as a waiver of any future breach of any provision(s) of this Agreement. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original and all of which shall constitute but one and the same instrument.
- (f) HIGH RISK APPLICATIONS. THE SOFTWARE AND SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAULT TOLERANCE OR FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK APPLICATIONS“). KHTS and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Applications.
- (g) Government End-Users. Each of the Services, Software, Documentation, and related items are intended to be “commercial items” to the maximum extent permitted under the US Code of Federal Regulations and any similar laws. All government end users only have the rights set forth herein.
- (h) Notices. All notices under this Agreement shall be in writing and shall be given by: (i) delivery in person; (ii) a nationally recognized next day courier service, (iii) first class, registered or certified mail, postage prepaid, return receipt requested or (iv) e-mail, provided that there is confirmation of receipt. Notices to KHTS will be sent to 421 Fayetteville Street, Suite 600, Raleigh, North Carolina, 27601, or by email to email@example.com. Notices to Licensee will be to the address or email specified in the Order. All notices shall be effective upon receipt by the party to which notice is given. Each party may change its address for receipt of notice by giving notice of such change to the other party.
- (i) Including. When the term “including” is used in these Terms, it shall be interpreted to mean “including, without limitation,”, so that the items after the term “including” are understood to be illustrative only and not a complete list.