KORBYT SUBSCRIPTION ADDENDUM
UPDATED: NOVEMBER 28, 2022
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. This Korbyt Addendum (this “Addendum”) supplements the terms of the Agreement between RMG Enterprise Solutions, Inc. dba Korbyt (“Korbyt“) and the Customer and describes the terms under which Korbyt offers the Customer access to its Subscription Services (defined below). Except as provided herein, all other terms and conditions of the Agreement shall remain in full force and effect. In the event of any conflict between the terms and conditions set forth in this Addendum and the terms and conditions of the Agreement, the terms and conditions of this Addendum will govern.
By accessing any Subscription Service, Customer agrees to comply with and to be bound by the terms of this Addendum, including the policies and guidelines linked to (by way of the provided URLs) from this Addendum. If Customer does not understand or agree with the terms below, please do not use the Subscription Services.
This Addendum is incorporated by reference into each Order executed by Customer. Korbyt may amend this Addendum at any time in its sole discretion, effective upon posting the amended Addendum at the domain or subdomains of www.korbyt.com/korbyt-addendum-terms where the prior version of the Addendum was posted, or by communicating these changes through any written contact method Korbyt has established with Customer.
The Parties hereby agree to the following:
1. Definitions. Capitalized terms used herein and not defined below or elsewhere in this Addendum shall have the meanings given them in the Agreement.
“Customer Data” means any materials, information, data, content, and other information owned or licensed by Customer that Customer, or its employees or agents, transmit to the Subscription Services.
“Documentation” means any written or electronic documentation, images, video or text specifying the functionality of the Software or Subscription Services that is provided or made available by Korbyt to Users.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm.
“Order” means an ordering document executed by the Customer, which incorporates by reference the terms of the Agreement, including this Addendum, identifies the Subscription Services ordered by Customer, sets forth the prices for the Subscription Services, the Subscription Term and contains other applicable information, terms and conditions. By entering into an Order hereunder, an Affiliate agrees to be bound by the Terms of the Agreement, including this Addendum as if it were an original party hereto.
“Subscription(s)” has the meaning in Section 2.1.
“Subscription Services” means Korbyt’s provision and management of the Subscription-based products described in the applicable Order or SOW that are provided for a particular Subscription Term.
“Subscription Term” means the period of time that Customer has the right to use the Subscription Services specified in the Order(s) and includes any renewal terms.
“Users” means Customer’s employees or contractors authorized to access and use the Subscription Services in accordance with this Addendum.
2. USE OF SERVICES
2.1 Access and Use. Subject to the terms of this Agreement, including this Addendum and the Order, Korbyt hereby grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable right to access the Subscription Services for its internal business purposes during the Subscription Term (each, a “Subscription”). Except for the foregoing rights in this Section 2.1, no other rights in the Subscription Services are granted hereunder. Other than Hardware, Customer acknowledges that Korbyt has no delivery obligation and will not ship anything to Customer as part of the Subscription Services.
2.2 Subscriptions. Subscription Services are purchased as Subscriptions. Additional Subscriptions may be added during a Subscription Term at the same pricing as the underlying Subscription pricing, prorated for the portion of that Subscription Term remaining at the time the Subscriptions are added, and any added Subscriptions will terminate on the same date as the underlying Subscriptions. Customer agrees that its Subscriptions hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Korbyt regarding future functionality or features.
2.3 Usage Metrics. Each Subscription is subject to a bandwidth usage limit of 2 gigabytes per endpoint or per end user, as applicable, per month and each cloud account is limited to 250 gigabytes of storage. If Customer exceeds the usage metrics described in this Section, Customer shall pay as specified in the applicable Order, or if not specified using the then-current rates for the applicable usage metric.
2.4 Changes and Environment. Korbyt regularly updates the Subscription Services and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements. The Subscription Services will be hosted on a server that is maintained by Korbyt or its designated third party supplier or data center. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Subscription Services.
3.1 Obligations. At no additional charge, Korbyt agrees to provide “Basic Support” for the Subscription Services from Monday-Friday from 8 a.m. to 5 p.m. CST excluding Korbyt holidays. “Basic Support” means that Korbyt will provide a response within 12 business hours of receipt of an incident and use commercially reasonable efforts to resolve such incident promptly. Additional support packages are available for purchase. Together with Basic Support such additional support packages, if purchased, shall be collectively referenced as “Support” hereunder. Korbyt Support contact information is as follows:
3.2 Exceptions to Support. Korbyt does not provide Support with respect to: (i) a Subscription Service that have been altered or modified by anyone other than Korbyt or its licensors; (ii) a Subscription Service used other than in accordance with the Documentation; (iii) professional services, or (iv) errors or malfunction caused by any data, systems or programs not supplied by Korbyt.
4. WARRANTY AND DISCLAIMERS
4.1 Korbyt Warranty. Korbyt represents and warrants that (i) it has sufficient rights in the Subscription Services to grant to Customer the rights to access and use the Subscription Services granted herein; (ii) it will provide the Subscription Services in a manner consistent with general industry standards; and (iii) the Subscription Services shall perform materially in accordance with the Documentation.
4.2 Disclaimers. EXCEPT AS EXPRESSLY STATED IN THIS ADDENDUM, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR ANY WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR STATUTORILY, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5. PROPRIETARY RIGHTS
5.1 Korbyt’s Intellectual Property Rights. As between Korbyt and Customer, all rights, title, and interest in and to all intellectual property rights in the Subscription Services are and will be owned exclusively by Korbyt. This Addendum is not a sale and does not convey to Customer any rights of ownership in or related to the Subscription Services, or any deliverables produced by the Subscription Services. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, patents, and other proprietary right relating to the Subscription Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by Korbyt.
5.2 Customer Data. As between Customer and Korbyt, Customer owns all rights, title and interest in and to all Customer Data. Customer hereby grants to Korbyt during the Subscription Term a royalty-free, fully-paid, non-exclusive, non-transferable (except in cases of assignment allowed under the Agreement), sub-licensable, worldwide right to use and process Customer Data solely for the purpose of providing to Customer the Subscription Services and any other activities expressly agreed to by Customer.
6. CUSTOMER RESPONSIBILITIES; RESTRICTIONS
6.1 User IDs. Customer is responsible for providing and administering usernames and passwords for all Users (the “Log-In Information”). Each User must have a valid username and password for the purpose of accessing the Subscription Services. Customer and Users must keep all Log-In Information strictly confidential.
6.2 Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign, distribute, disclose, or otherwise commercially exploit or make available to any third party the Subscription Services; (ii) copy, record, extract, scrape, modify or make derivative works based upon the Subscription Services; (iii) “frame” or “mirror” the Subscription Services on any other server or device; (iv) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Subscription Services, (v) remove, obscure or modify a copyright or other proprietary rights notice in the Subscription Services; (vi) use the Subscription Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material that violates third party privacy rights; (vii) use the Subscription Services to create, use, send, store, or Malicious Code or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Subscription Services; or (viii) permit or assist any other party (including any user) to do any of the foregoing.
6.3 Security. Customer will not: (a) breach or attempt to breach the security of the Subscription Services or any network, servers, data, computers or other hardware relating to or used in connection with the Subscription Services, or any third-party that is hosting or interfacing with Korbyt; (b) attempt to gain or permit unauthorized access to the Subscription Services or related systems or networks including but not limited to conducting any penetration testing, denial of service attacks, or similar efforts on the Subscription Services or any network, servers, data, computers or other hardware relating to or used in connection with the Subscription Services, or (c) use or distribute through the Subscription Services any software, files or other tools or devices designed to interfere with or compromise the privacy, security, or use of the Subscription Services or the operations or assets of any other customer of Korbyt or any third party.
6.4 Suspension Rights. Korbyt may at any time suspend or turn off the access of Customer or Users to the Subscription Services and/or disable Log-In Information if Customer or any User: (i) materially breaches (or Korbyt reasonably suspects such breach) the terms of this Addendum, the Agreement, Korbyt’s policies; (ii) violates any applicable laws or regulations; or (iii) is harmful to Korbyt, Customer, Korbyt’s or Customer’s network or facilities, other Korbyt customers or users. Korbyt shall not be liable to Customer or any User for any suspension of the Subscription Services.
7. SECURITY STANDARDS AND SAFEGUARDS
7.1 Personal Data. Korbyt shall maintain commercial safeguards against the unauthorized destruction, disclosure or alteration of Customer personal data that is in the possession of Korbyt. Korbyt utilizes Amazon Web Services (“AWS”) as its data center. AWS uses external auditors to verify the adequacy of its security measures, including the security of the physical data centers from which Korbyt provides the Subscription Services. This audit: (a) will be performed at least annually; (b) will be performed according to ISO 27001 standards or such other alternative standards that are substantially equivalent to ISO 27001; (c) will be performed by independent third-party security professionals at AWS’s selection and expense; and (d) will result in the generation of an audit report (“Report”), which will be AWS’s Confidential Information. At Customer’s written request, Korbyt will provide Customer with a copy of the Report.
7.2 Data Protection Agreement. Customer and Korbyt shall comply with all applicable privacy laws and regulations and shall provide help and cooperation to the other as is reasonably necessary or requested to comply with these laws and regulations. If the Subscription Service involves the processing of personal data, then the Parties agree that Korbyt’s data protection agreement located at https://www.korbyt.com/engagement/legal/data-protection-addendum/ shall apply.
8. PAYMENT TERMS
8.1 General. Customer shall pay the fees specified in the applicable Order within 30 days of the invoice date. Except as otherwise specified herein or in an Order, (a) fees are based on Subscriptions purchased and not actual usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, (c) quantities purchased cannot be decreased during the relevant Subscription Term, (d) fees paid or payable for the Subscription Services are not contingent upon the performance of any Professional Subscription Services.
8.2 Invoicing. Unless otherwise stated in an Order, Korbyt will invoice Customer for Subscription fees stated in an Order annually in advance.
8.3 Purchase Orders. Korbyt may accept Customer’s purchase order as an Order; provided, however, all pre-printed or standard terms of any Customer purchase order or other business processing document are hereby rejected and will have no force or effect.
9.1 Term. Notwithstanding any provision to the contrary in the Agreement and except as provided in Section 9.3 below, an Order for Subscription Services may not be terminated early by either party prior to the expiration of the Subscription Term.
9.2 Renewal. All Subscriptions will automatically renew for the same period as the original Subscription Term (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Subscription Term or Renewal Term.
9.3 Termination. Either Party may terminate an Order immediately upon written notice at any time if: (a) the other Party fails to (i) cure any material breach within 30 days or (ii) provide a written plan of cure acceptable to the non-breaching Party, each within 30 days of being notified in writing of the breach; (b) the other Party ceases business operations; or (c) the other Party becomes insolvent, generally stops paying its debts as they become due or becomes the subject of an insolvency or bankruptcy proceeding. If this Agreement is terminated by Customer due to an uncured material breach by Korbyt, Korbyt shall promptly refund the pro-rata amount of any pre-paid Subscription fees attributable to periods after the date of such termination.
10. LIMITATIONS OF LIABILITY.
10.1 EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 6.2, AND 7 HEREIN, KORBYT’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS, OR FROM PERSONAL INJURY OR PHYSICAL DAMAGE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY, NEITHER PARTY’S LIABILITY IN CONNECTION WITH THIS ADDENDUM SHALL EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES DURING THE 12 MONTHS PRIOR TO THE EVENT TRIGGERING SUCH LIABILITY.
10.2 EXCLUSION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND, REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THIS ADDENDUM OR THE SERVICES PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES.