Updated July 21, 2022
KORBYT END USER SUBSCRIPTION AGREEMENT
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE INSTALLING OR USING THE SERVICE AND BEFORE USING THE CONTENT. THIS END USER SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS A LEGALLY BINDING CONTRACT BETWEEN THE END USER OF THE SERVICE AND CONTENT (AS BOTH TERMS ARE DEFINED BELOW) OR SUCH END USER’S EMPLOYER, AS APPLICABLE, WHETHER AN INDIVIDUAL OR AN ENTITY (COLLECTIVELY, “CUSTOMER”) AND RMG ENTERPRISE SOLUTIONS, INC. DBA KORBYT OR ONE OF ITS SUBSIDIARIES (“KORBYT”). BY AGREEING TO THIS AGREEMENT, OR OTHERWISE INSTALLING OR USING THE SERVICE OR PRODUCTS, CUSTOMER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT ALSO APPLIES TO ANY UPDATES OR NEW RELEASES OF THE SERVICE OR PRODUCTS, UNLESS SUCH UPDATES OR NEW RELEASES ARE ACCOMPANIED BY DIFFERENT TERMS AND CONDITIONS, IN WHICH CASE SUCH TERMS AND CONDITIONS WILL APPLY TO SUCH UPDATES OR RELEASES.
The Parties agree to the following:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with such entity. For purposes of this Agreement, an entity will be deemed to “Control” (including its correlatives) another entity if such entity possesses, directly or indirectly, the power to (i) vote more than fifty percent (50%) of the voting interests of the subject entity or (ii) cause the appointment or election of fifty percent (50%) or more of the directors or other members of the governing body of such other entity.
“Claim” means any claim, demand, suit, action, allegation, or any other proceeding.
“Confidential Information” has the meaning set forth in Section 10 (a) herein.
“Content” means all content in text, graphic, animation, video, or any other form that is owned by Korbyt or licensed to Korbyt by a Third-Party Provider.
“Customer Data” means any materials, information, data, content, and other information that Customer, or its employees or agents, transmit to the Subscription Services.
“Documentation” means Korbyt-provided user manuals and operator instructions as may be to Customer in any format, including paper and electronic, which are related to the Service.
“Fees” means, collectively, the Subscriptions Fees and any other expenses or amounts due under this Agreement or an Order.
“Intellectual Property Rights” means any and all worldwide copyrights, patents, moral rights, trademarks, service marks, and all other rights in intellectual property existing now or in the future, and any and all applications and registrations therefor.
“Law” means any statute, law, ordinance, regulation, rule, code, order, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any court or tribunal of competent jurisdiction.
“Loss” or “Losses” means all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs, fees or expenses of whatever kind, including, but not limited to, reasonable attorneys’ fees.
“Order” means an underlying ordering document agreed to in writing by the Customer and/or the applicable Reseller and Korbyt. Korbyt may, in its discretion, accept or reject any such Order. No Order is effective unless accepted by Korbyt in writing. Customer may not change or cancel any submitted Order. In the alternative, an Order may be generated by using a Korbyt Order form, when signed by Customer or the applicable Reseller, and accepted by Korbyt by the signature of its authorized representative.
“Protected Information” means: (i) Social Security number; (ii) passport numbers or other government-issued identification numbers; (iii) health or medical information (other than dietary preferences or medical contact information); (iv) date of birth, (v) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; or (vi) other information that a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, title, company name, mailing address, email address, and phone number).
“Service” means Korbyt’s provision and management of the Content and Subscription-based software, including all components thereof, described in the applicable Order Form that are provided for a particular Subscription Term.
“Subscription” has the meaning set forth in Section 2 herein.
“Subscriptions Fees“means the fees to use the Service for the Subscription Term and any other fees, as set forth in the Order.
“Subscription Term” means the period of time specified in an Order Form that Customer has the right to use the Service.
“Third-Party Provider” means third parties that provide Third-Party Software under this Agreement or third parties that provide services or support in connection with the Services, including third-party provided hosting and data processing services.
“Third-Party Software” means software owned or licensed by a Third-Party Provider.
“Users” means individuals who are authorized to access and use the Service and who have been provided user identifications and passwords by Customer (or by Korbyt at Customer’s request). Users may be Customer employees, Customer third party consultants, contractors or agents, which third parties may access and use the Service solely for the benefit of Customer’s internal business purposes in accordance with the provisions of the Agreement.
2. Provision of the Service, Usage Limits and Statements of Work
(a) Subject to terms of this Agreement and Customer’s payment of all applicable Fees, Korbyt agrees to provide the Service to Customer in accordance with the terms herein and the applicable Order. Customer acknowledges and agrees that its purchase of the Service is not contingent upon the delivery of any future functionality or features.
(b) Subject to terms of this this Agreement and Customer’s payment of all applicable Fees, Korbyt hereby provides Customer a non-transferable and nonexclusive subscription right to access and use the Service for the sole purpose of supporting the internal operations of Customer’s business (the “Subscription“) for the Subscription Term stated in an Order. The Service may be accessed and used solely by a User whose identification and password may not be shared, accessed or used by any other person, company or entity.
(c) The Service is subject to usage, functional and other limits, based on the module(s) and quantities specified in an Order. If Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute, or be deemed to have executed an Order for additional quantities of the applicable Service promptly upon Korbyt’s request, or be deemed to have executed such an Order, and shall pay any invoice for exceeding applicable limits in accordance with Section 8 herein.
(d) From time to time Korbyt may revise, alter or otherwise change the Service and/or replace the Service with an alternative software containing substantially similar functionality, which shall thereafter be considered as the Service hereunder. A service, software or platform that Korbyt makes generally available separately from the Service shall not be considered as a part of the Service hereunder.
(e) This Agreement applies whether Customer purchases Subscriptions directly from Korbyt or through any Korbyt authorized reseller or distributor (“Reseller”). If Customer purchases through a Reseller, Customer’s scope of use of the Services shall be as stated in the Order placed by Reseller for you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on Korbyt’s behalf, and Korbyt is not bound by any obligations to Customer other than what is specified in this Agreement.
3. Customer Responsibilities
(a) 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 Service. Customer and Users must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User and may not be shared or transferred without Customer’s consent and control. Customer agrees to notify Korbyt immediately of any unauthorized use of any Users accounts or any other breach of security. Korbyt will not be liable for any loss that Customer or an User may incur as a result of someone else using an Users’ passwords or accounts, either with or without the applicable Users’ knowledge.
(b) Customer will comply with all applicable Laws in accessing and using the Service.
(c) Customer will provide to Korbyt prompt and adequate access to Customer’s systems and facilities as needed for Korbyt to perform its obligations under this Agreement. Korbyt will use all commercially reasonable efforts to avoid any disruption to Customer’s business operations during the period of such access. Customer will provide to Korbyt contact details for the Customer individuals responsible for application administration/configuration and for support contacts.
(d) Customer acknowledges and agrees that use of the Service does not require Customer to provide any Protected Information to or through the Service and Korbyt shall have no liability to Customer or its representatives, Users or any other party related to any Protected Information. Customer shall not upload, provide or submit any Protected Information to the Service.
4. Third Party Links/Additional Functionality
(a) The Service may provide links that allow Customer or Users to leave the Service and/or access third party data or websites. The linked sites are not under the control of Korbyt and Korbyt is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Korbyt is not responsible for webcasting or any other form of transmission received from any linked site. Korbyt provides these links only as a convenience, and the inclusion of any link does not imply endorsement by Korbyt of the site. Korbyt does not guarantee the security of any information transmitted to or from Customer or any User over the Internet, including the use of e-mail. Access to the Internet, if employed, is Customer’s and each User’s sole responsibility and the responsibility of the Internet provider(s) you select. Korbyt has no responsibility for failure of the Service due to Internet facilities, including related telecommunications or equipment.
(b) From time to time, additional functionality, which functionality is then marketed separately by Korbyt, may be offered by Korbyt with respect to the Service at an additional fee. Such additional functionality will be offered and agreed under a separate Order.
5. Limitations and Processes
(a) Korbyt’s performance hereunder shall be excused as a result of Customer’s or Reseller’s failure to perform duties and responsibilities hereunder or under the applicable Order that act as a prerequisite to Korbyt’s ability to perform its duties and responsibilities hereunder.
(b) Customer and Users 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 Service; (ii) copy, record, extract, scrape, modify or make derivative works based upon the Service; (iii) “frame” or “mirror” the Service 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 Service, (v) remove, obscure or modify a copyright or other proprietary rights notice in the Service; (vi) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material that violates third party privacy rights; (vii) use the Service to create, use, send, store, code, files, scripts, agents or programs intended to do harm or otherwise engage in any malicious act or disrupt the security, integrity or operation of the Service; (viii) attempt to gain or permit unauthorized access to the Service or related systems or networks, including but not limited to conducting any penetration testing, security scans, denial of service attacks, or similar efforts; (iv) access or use the the Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Service; or (ix) permit or assist any other party (including any user) to do any of the foregoing.
(c) Korbyt may at any time suspend (or require that Customer suspend) the access of Users to the Service and/or disable Log-in Information in the event of violation of this Agreement including, but not limited to, legal or regulatory reasons, investigation of suspicious activities, or action by authorities, or if Korbyt or Customer has reason to suspect any User is engaged in activities that may violate the provisions of this Agreement, applicable Laws, or Korbyt’s policies, or are otherwise deemed harmful to Korbyt, Customer, Korbyt’s or Customer’s respective network or facilities, or other Users. Korbyt shall not be liable to Customer or to any User for any suspension of the Service.
(d) Customer acknowledges and agrees that Korbyt may use data processed by the Service that is anonymized and not traceable to any individual (“Non-Individual Data“) to include in Korbyt’s generic database for the analysis, evaluation and improvement of Korbyt’s products and of the Service, provision of anonymous reporting of non-individual data for internal and external customers of Korbyt. Korbyt’s use of the Non-Individual Data shall be in compliance with applicable Laws and with the confidentiality provisions of this Agreement.
(a) Mutual Warranty: Each Party represents and warrants to the other that: (i) it has the full corporate, limited liability company or partnership, as the case may be, power and authority to enter into and deliver this Agreement and perform its obligations hereunder; (ii) it has the necessary rights to enter into this Agreement and perform its obligations hereunder; (iii) this Agreement is a valid and binding obligation of it and enforceable in accordance with its terms; and (iv) it will comply with all applicable Laws in the course of performing its obligations and exercising its rights under this Agreement.
(b) Korbyt Warranty: Except as stated in Section 15 with respect to Trial Services, for which there will be no warranties, Korbyt represents and warrants that (i) it owns or otherwise has sufficient rights in the Service to grant to Customer the rights to access and use the Service granted herein; (ii) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; and (iii) it uses commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and shall notify Customer promptly upon Korbyt’s knowledge of any unauthorized access or use that causes a materially adversely effect on Korbyt’s provision of the Service to Customer or Customer’s use of the Service.
(c) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, 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.
(d) Customer warrants that (i) only Customer and Users shall be permitted to access the Service and any related tools, applications, information and materials provided in connection with the Service; and (ii) Customer shall obtain and maintain in effect all permits, licenses and authorizations necessary for the purchase and intended use of the the Service.
(e) Customer represents and warrants that Customer and those providing information to Customer have the right to transmit to Korbyt, and receive from Korbyt, any Customer Data, or other data, material or records that are required to enable Korbyt to perform the Service and any other of its obligations under this Agreement. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement.
7. Limitation of Liability
(a) EXCEPT FOR LIABILITY ARISING UNDER 9(B), OR FROM PERSONAL INJURY OR PHYSICAL DAMAGE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY, KORBYT’S LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE IMPLICATED DURING THE 12 MONTHS PRIOR TO THE EVENT TRIGGERING SUCH LIABILITY.
(b) IN NO EVENT SHALL KORBYT BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES provided hereunder, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES.
(c) Subject to Korbyt’s confidentiality obligations hereunder, regarding Customer Data, Korbyt will not be responsible for any unauthorized access to or alteration, theft or destruction of such Customer Data, through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a direct result of Korbyt’s gross negligence or intentional misconduct, in which case Korbyt’s commercially reasonable efforts to restore or recover Customer Data shall be limited to the most recent back-up of such Customer Data. It is hereby acknowledged that it is Customer’s responsibility to protect Customer Data from loss by routinely performing backup procedures.
(d) Korbyt is not responsible for loss of Customer Data, or other data from an improper transmission by Customer or failure by Customer to act on any communication transmission to Customer by or through Korbyt. In the event of improper transmission or loss of in transmission, Korbyt will use commercially reasonable efforts to recreate such transmission at Korbyt’s then current rates.
(e) Korbyt is not responsible for any Service errors or interruptions due to internet service provider or hosting facility failures or delays, including without limitation internet or communication problems.
Customer will pay all Fees in accordance with the payment terms set forth in the applicable Order. All Fees and prices are non-refundable, notwithstanding any expiration or termination of the applicable Order or this Agreement.
(a) Customer will indemnify, defend and hold harmless Korbyt, its Affiliates and each of their respective officers, directors, employees, agents, successors and assigns (each, a “Korbyt Indemnitee“) from and against any and all Losses incurred by any Korbyt Indemnitee, directly or indirectly, arising out of a Claim related to or otherwise made in connection with: (i) the willful misconduct or grossly negligent acts or omissions of Customer; (ii) Customer’s material breaches of any of the licenses granted herein or any of the use restrictions related to such licenses; (iii) the failure of Customer to hold all necessary rights to, and interest in, any properties, materials or information that Customer makes available to Korbyt to perform Korbyt’s obligations under this Agreement (including any Customer Data); (iv) a third party Claim that any Customer Data or Korbyt’s use thereof infringes, misappropriates or violates any third-party Intellectual Property Right, provided that, Korbyt (A) promptly notifies Customer in writing of such Claim, (B) grants Customer sole control over the defense and settlement thereof, and (C) cooperates with any request by Customer for assistance in defending such Claim; or (v) the Other IP Claims (defined below). Customer shall have no liability under this paragraph for any alleged infringement based, in whole or in part, on (1) the use of the Customer Data for a purpose or in a manner for which such Customer Data were not intended or designed; (2) any modification made by Korbyt to the Customer Data without Customer’s approval; (3) any modification made by Customer to the Customer Data pursuant to Korbyt’s instruction; or (4) any Intellectual Property Right owned or licensed by Korbyt. “Other IP Claims” means any alleged infringement based, in whole or in part, on any combination of the Service with Third-Party Software or with Customer or other third party products or with Customer Data; the use of the Service for a purpose or in a manner for which the Service was not intended or designed; any modification made to the Service without Korbyt’s express written approval; modifications made by Korbyt pursuant to Customer’s instructions or request; any Intellectual Property Right owned or licensed by Customer, or any subsidiary or Affiliate of Customer; or compliance with designs, plans or specifications of Customer.
(b) Korbyt shall indemnify, defend and hold Customer harmless from and against any and all losses, costs, liabilities or expenses (including but not limited to reasonable attorney’s fees) arising from: (i) a Claim resulting from the willful misconduct or grossly negligent acts or omissions of Korbyt, or (ii) a third party Claim that the Service purchased by Customer and used by Customer in accordance with this Agreement infringes a U.S. patent or copyright, provided that, Customer (A) promptly notifies Korbyt in writing of such claim; (B) grants Korbyt sole control over the defense and settlement thereof; and (C) cooperates with any request by Korbyt for assistance in defending such Claim. Should the Service become, or in Korbyt’s opinion be likely to become, the subject of such a Claim, Korbyt may, at its option and expense, procure for Customer the right to make continued use thereof, whether through obtaining a license or some other means; replace or modify the Service so that it becomes non-infringing; request, as applicable, Customer discontinue using the Service and refund the unused pro-rate amount of the pre-paid Subscriptions Fee. Korbyt shall have no liability under this Section 9(b) for any alleged infringement based, in whole or in part, on (1) any combination of the Service with Third-Party Software or with Customer or other third party products or with Customer Data; (2) the use of the Service for a purpose or in a manner for which the Service was not intended or designed; (3) any modification made to the Service without Korbyt’s express written approval; (4) modifications made by Korbyt pursuant to Customer’s instructions or request; (5) any Intellectual Property Right owned or licensed by Customer, or any subsidiary or Affiliate of Customer; or (6) compliance with designs, plans or specifications of Customer (each, and collectively the “Excluded IP Claims“). THE FOREGOING CONSTITUTES KORBYT’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT CLAIM ARISING HEREUNDER.
(c) Promptly after receipt by a Korbyt Indemnitee or Customer, as applicable (each, an “Indemnitee“) of notice of actual or threatened commencement of any Claim of which an Indemnitee is entitled to indemnification under this Section, the Indemnitee will notify the indemnifying party (the “Indemnitor“) of such Claim. No delay or failure to so notify Indemnitor will relieve Indemnitor of its obligations under this Agreement except to the extent that Indemnitor has suffered material prejudice by such delay or failure. Within thirty (30) days following receipt of notice from the Indemnitee relating to any such Claim, but no later than fifteen (15) days before the date on which any response to a complaint or summons is due, if applicable, Indemnitor will notify Indemnitee that Indemnitor will assume control of the defense and settlement of such claim (a “Notice of Assumption“). If Indemnitor delivers a Notice of Assumption within the required notice period, Indemnitor will assume control (subject to the Indemnitee’s right to participate at its cost and expense) over the defense and settlement of the Claim and diligently defend the Claim; provided, however, that: (i) Indemnitor will keep the Indemnitee fully apprised as to the status of the defense; and (ii) Indemnitor will obtain the prior written approval of the Indemnitee before entering into any settlement of such Claim asserting any Losses against the Indemnitee, imposing any obligations or restrictions on the Indemnitee, involving any admission on the part of the Indemnitee, ceasing to defend against such Claim or otherwise adversely impacting the Indemnitee. If Indemnitor does not deliver a Notice of Assumption within the required notice period, or if, after the assumption of the defense by Indemnitor, Indemnitor fails to defend the Claim diligently to the Indemnitee’s reasonable satisfaction, the Indemnitee will have the right to defend the Claim in such manner as it may deem appropriate. Indemnitor will promptly reimburse the Indemnitee for all Losses incurred by the Indemnitee in connection therewith to the full extent of Indemnitor’s indemnification obligation under this Section.
(a) Definition of Confidential Information. “Confidential Information” will mean all information, technical data or know-how, in whatever form, which the disclosing party (the “Discloser“) transmits to the receiving party (the “Recipient“) in any manner, even if disclosed to Recipient prior to the Effective Date, relating to the properties, business activities or operations of Discloser, including, without limitation, (i) all information of Discloser disclosed in writing or other tangible form and that is plainly marked by Discloser as “confidential” or “proprietary” or other similar wording; (ii) all information of Discloser that is not known to the public, without regard to the form in which such information is disclosed; (iii) any and all of the foregoing which is prepared by Recipient or its employees or agents that contains, reflects or is based upon, in whole or in part, any of the Confidential Information; (iv) the contents of discussions and negotiations between the parties hereto concerning this Agreement, and the content of the Agreement between the parties hereto itself; and (v) any information or materials that, under the circumstances of disclosure, would reasonably be expected or understood to be confidential. Notwithstanding anything to the contrary, the Service, including any associated software and components, the Documentation, the Content, are each Confidential Information of Korbyt. Confidential Information will not include information that Recipient can demonstrate: (A) is or (through no improper action or inaction by Recipient or any Affiliate, agent, consultant or employee of Recipient) becomes available to the general public; (B) was lawfully in the possession of or known by Recipient on a non-confidential basis at the time of disclosure by Discloser; (C) was received on a non-confidential basis from a third party that to the Recipient’s knowledge had a lawful right to disclose such information; or (D) was independently developed by Recipient without reference to or use of the Discloser’s Confidential Information.
(b) Non-Disclosure and Use. Recipient will not use the Confidential Information of Discloser for any purpose other than in furtherance of this Agreement. Recipient will not disclose Discloser’s Confidential Information to any person or entity other than Recipient’s employees, Users, agents, advisors and representatives with a need to know the Confidential Information in order to carry out the purpose of this Agreement and who agree to be bound by Recipient’s obligations under this Agreement with regard to nondisclosure and use of such Confidential Information (each a “Representative“). Recipient agrees that it (and that its employees, Affiliates, agents or Representatives) will not reverse-engineer, decompile or disassemble any part of, or remove any proprietary marking from, Discloser’s Confidential Information.
(c) Care. Recipient will use at least the same degree of care to safeguard and to prevent disclosure to third parties of Discloser’s Confidential Information as it employs to safeguard its own information of a similar nature, but in no event less than reasonable care. Recipient will promptly (i) notify Discloser in writing of the details and circumstances of any unauthorized disclosure, misuse or misappropriation of any of Discloser’s Confidential Information (an “Unauthorized Use“) which may come to Recipient’s attention; (ii) use reasonable efforts to rectify or cure such Unauthorized Use and retrieve any such disclosed Confidential Information; and (iii) use reasonable efforts to provide assistance to and cooperate with Discloser to rectify or cure such Unauthorized Use and to prevent further Unauthorized Use.
(d) Mandatory Disclosure. If Recipient becomes legally compelled to disclose any of Discloser’s Confidential Information, Recipient will (i) if lawfully permitted to do so, promptly notify Discloser of such requirement before any disclosure is made so that Discloser may seek a protective order or other appropriate remedy limiting disclosure or use of such information; and (ii) provide reasonable assistance to Discloser to seek such remedy at Discloser’s expense. If such protective order or other remedy is not obtained, Recipient may furnish only that portion of such Confidential Information that, in the written opinion of its legal counsel, it is legally required to disclose, and Recipient agrees to make commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information.
(e) Ownership. Discloser will retain the title and full ownership rights to its Confidential Information. No license, express or implied, in the Confidential Information is granted to Recipient other than to use the information in the manner and to the extent authorized hereunder.
(f) Return of Confidential Information. Upon the written request of Discloser, all of Discloser’s Confidential Information in tangible form will be, at Discloser’s sole discretion, either promptly returned to Discloser or promptly destroyed by Recipient, and in either case not retained by Recipient or its Affiliates in any form. Notwithstanding anything to the contrary herein, Recipient’s legal department may retain an archival copy of all or any portion of Discloser’s Confidential Information to the extent required by applicable Law or for the purpose of defending or prosecuting Claims relating to this Agreement. The rights and obligations of the parties hereto regarding the non-disclosure and use of Confidential Information exchanged under this Agreement will survive any return, retention or destruction of any Confidential Information.
(g) Remedies. The parties hereto acknowledge and agree that money damages would not be a sufficient remedy for any breach of this Section 10, and that any such breach may cause immediate and irreparable harm. Each Party agrees that, in the event of any breach or threatened breach of this Section 10 by Recipient, Discloser will be entitled, in addition to all remedies otherwise available at applicable Law or in equity, to seek injunctive relief and specific performance (without the necessity of proving actual damages or posting a bond, cash or otherwise).
11. Proprietary Rights
(a) Korbyt and its licensors shall retain all Intellectual Property Rights. and all other proprietary interests to the Service, the Content and to all Korbyt intellectual property and any enhancements, modifications or derivatives of the foregoing. Customer may not distribute, promote, or otherwise use any information or materials relating to the Service for any external use without the express prior written consent of Korbyt or as otherwise specifically permitted herein. No title, copyright, patent, trademark, trade secret or other right of intellectual property not expressly granted hereunder is exchanged between the parties hereto. Korbyt and its licensors retains all rights to any related work product delivered hereunder and Customer acknowledges and agrees that it obtains no rights to such work product as a “work made for hire” as that term is defined in Section 101 of the United States Copyright Act or any comparable provision under the laws of other jurisdictions.
(b) During the Term, Customer hereby grants to Korbyt and its Affiliates a non-exclusive, worldwide, irrevocable, royalty-free, fully-paid, and sublicensable right and license to use, execute, reproduce, display, perform, modify, enhance, and distribute, and to make Improvements to Customer Data solely for Korbyt to fulfill its obligations and exercise its rights hereunder.
(c) As between Customer and Korbyt, Customer owns all rights, title and interest in and to all Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of and right to use all Customer Data, and hereby warrants that that it has and will have all rights and consents necessary to allow Korbyt to use all Customer Data as contemplated by this Agreement.
12 . Disaster Recovery
Korbyt shall maintain a disaster recovery plan and shall use commercially reasonable efforts to perform such plan in a timely manner upon the occurrence of a Force Majeure Event. In the event a Force Majeure Event occurs and this affects Korbyt’s ability to backup Customer Data from the previous 24 hours, Customer acknowledges and agrees that such Customer Data may not be recoverable and accepts responsibility for re-entry of the Customer Data.
13. Term and Termination
(a) Term of Agreement. This Agreement commences on the Effective Date and continues until all Subscriptions hereunder have expired or have been terminated. In the event that no Order is then in effect, either Party may terminate this Agreement, any Order, in whole or in part, for convenience without further liability or obligation to the other Party or any third party (except for Customer’s payment obligations hereunder) upon sixty (60) days’ prior written notice to the other Party.
(b) Term of Subscriptions. The initial Subscription Term is for the period beginning upon the date of Customer’s access to the Service or as otherwise described in an Order unless terminated earlier as provided in this Agreement (the “Initial Term“). After the Initial Term, the Subscription Term will automatically renew for additional periods equal to the expiring subscription term or as otherwise stated in the Order (each, a “Renewal Term“), unless either Party provides the other Party with written notice of non-renewal at least sixty (60) days prior to the expiration of the relevant subscription term. The Initial Term and any Renewal Terms are collectively referred to as the “Term.” Termination or expiration of this Agreement will not terminate existing Orders, each of which will survive until the end of their applicable terms, and the terms of this Agreement will continue to apply to such Orders. The per-unit pricing during any automatic renewal term will be at Korbyt’s then-current rates.
(c) Termination for Insolvency. This Agreement and any Order will terminate automatically if either Party: (i) makes a general assignment for the benefit of creditors; (ii) is adjudicated bankrupt; (iii) files a voluntary petition for bankruptcy or reorganization, or involuntarily has a petition filed against it for an adjudication in bankruptcy or reorganization and such petition is not stayed, discharged or dismissed within fifteen (15) days; (iv) voluntarily applies for the appointment of a receiver, trustee or custodian for any of its property or assets, or involuntarily permits the appointment of a receiver, trustee or custodian for any of its property or assets that is not stayed, discharged or dismissed within fifteen (15) days; (v) makes an admission in writing of its inability to pay debts as they become due; (vi) commences or has commenced against it any proceeding relating to the relief or readjustment of indebtedness of such Party; (vii) has any of its facilities foreclosed by any financial institution; or (viii) ceases, or announces its intention to cease, to do business for any reason.
(d) Termination for Breach and Service Turn-Off Rights. Either Party may terminate this Agreement and any Order immediately upon written notice to the other Party in the event that the other Party is in material breach or default under this Agreement, or any Order, and fails to remedy such breach within thirty (30) days of notice thereof from the non-breaching Party. If Customer materially breaches the terms of this Agreement, including but not limited to non-payment of Fees not then under bona fide dispute, Korbyt may immediately turn off Customer’s access to the Service.
(e) No Refunds. The parties hereto agree that in no event will any Fees or prices be refundable upon termination or expiration of this Agreement or any Order for any reason.
(f) Survival. The following Sections will survive any expiration or termination of this Agreement: Sections 5(b), 5(d), 6, 7, 8, 9, 10, 11, 14, and 15(b), 15(c), 15(f) through 15(j).
During the Term Customer will provide to Korbyt or its internal and external third-party(ies), access, at all reasonable times, to the location(s) where Customer is accessing or using the Service, and to Customer’s personnel and other resources reasonably requested by Korbyt for the purposes of determining Customer’s compliance with the usage, storage, bandwidth and any other limits as described in this Agreement and in any Order. Customer will make the information and resources reasonably required by Korbyt and will assist Korbyt and its internal or external third-party(ies) as necessary.
15. Trial Services
Korbyt may make one or more Services available to Customer on a trial basis free of charge, to access and use solely for evaluation purposes (“Trial Services”), during a Subscription Term that ends on the earlier of (i) 30 days after the date of access to the Trial Services by Customer, (ii) the last day of the trial period stated in an Order, or (iii) the start date of any Services purchased by Customer as stated in the applicable new Order. Trial Services are only made available based on a Subscription Term that applies to a requesting Customer, and are not available through multiple Subscription Terms for individuals who are members of the same organization. Trial Services shall be subject to limitations at Korbyt’s sole discretion including but not limited to the number of users, storage, and features. Korbyt may suspend, limit, or terminate the Trial Services for any reason at any time upon 5 days’ notice. The Trial Services If Customer does not purchase Services within this notification period then Customer’s Subscription for Trial Services will be terminated.
(b) Terms and Conditions. The provisions of this Agreement shall apply to Customer’s access and use of the Trial Services. Korbyt may apply additional terms and conditions to the Trial Services through its website and such additional terms and conditions shall be incorporated into this Agreement by reference.
(d) Limited Functionality. Customer’s Subscription for Trial Services may be limited in various ways at Korbyt’s sole discretion as compared to the scope of any Services purchased for a fee, including but not limited to limits on number of user accounts, lesser or no security, and disabled or limited customization, functionality and features. Korbyt will not provide any implementation or support assistance for Trial Services.
(e) DATA LOSS. ALL CUSTOMER DATA THAT HAS BEEN ENTERED AND ANY CUSTOMIZATIONS MADE TO THE SERVICES WHEN USING TRIAL SERVICES WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION BEFORE THE END OF THE SUBSCRIPTION TERM OF THE TRIAL SERVICES WHICH IS THE SAME AS OR AN UPGRADE TO THOSE COVERED BY THE TRIAL SERVICES.
2.6 EXCLUSION OF WARRANTIES: ALL TRIAL SERVICES ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES, AND SOLELY AT CUSTOMER’S OWN RISK.
(a) Other than Customer’s payment of Fees, each Party shall be excused from performance of its obligations pursuant to the Agreement for any period and to the extent that it is prevented from performing such obligations, in whole or in part, as a result of delays caused by an act of God, severe weather, hurricanes, earthquakes, flood, war, civil disturbance or civil commotion, court order or any other cause over which it does not have reasonable control, including internet or communication problems (including internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Korbyt’s possession or reasonable control), (a “Force Majeure Event“).
(b) The section headings contained in this Agreement are for reference purposes only and will not affect in any way affect the meaning or interpretation of this Agreement. The words “include” or “including” when used herein are not exclusive and mean “include, without limitation” and “including, without limitation,” respectively. The parties hereto and their respective counsel have had an opportunity to fully negotiate this Agreement. Accordingly, this Agreement will not be construed against any Party as the principal draftsperson hereof.
(c) Korbyt may identify Customer as a Korbyt customer and may display Customer’s logo but only in connection with such identification. Korbyt shall not otherwise display Customer’s logo, and shall not utilize other trademarks or service marks of Customer without Customer’s consent, which consent shall not be unreasonably withheld, delayed or conditioned. Except as is required by rules governing disclosures by publicly traded companies, Korbyt may not issue any press, media or publicity releases or give statements to the media identifying Customer or relating to this Agreement without Customer’s consent, which consent shall not be unreasonably withheld, delayed or conditioned.
(d) Korbyt’s failure to perform, or delay in performing, its responsibilities under this Agreement will be excused if and to the extent that its non-performance is caused by: (A) the failure of (i) Customer to perform its specified obligations under this Agreement, (ii) any Customer third-party contractor to perform its obligations under the applicable contract between such Customer third-party contractor and Customer; or (iii) an applicable Reseller to perform its obligations under any Order or agreement with Korbyt, (B) any act performed or omitted by Korbyt at the specific request of Customer; or (C) any act performed by Customer (including its personnel or third-party contractors) to the extent that such act was not otherwise agreed upon by the Parties.
(e) Each Party acknowledges that the other Party may be subject to regulation by agencies of the U.S. Government, including, but not limited to the U.S. Department of Commerce, which prohibit export or diversion of certain technical products to certain countries. Each Party warrants that it will comply in all respects with the Export Administration Regulations and all other export and re-export restrictions as may be applicable to its performance hereunder.
(f) Customer represents and warrants that will comply with, and in its obligations to Korbyt will not take any action or omit any action that would cause either Party to be in violation of any applicable anti-corruption Laws and regulations under such Laws including the U.S. Foreign Corrupt Practices Act, Canada’s Corruption of Foreign Public Officials Act, and the U.K. Anti-Bribery Act. For the avoidance of doubt, any violation of this Section 16(g) shall be deemed to be a material breach of this Agreement.
(g) This Agreement, all transactions between, and the rights and obligations of the Parties will be governed, construed and interpreted in accordance with the laws of the State of Texas, without reference to conflict of Laws principles. BOTH PARTIES IRREVOCABLY WAIVE TRIAL BY JURY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT. The Parties agree that their respective rights and obligations under this Agreement will be solely and exclusively as set forth in this Agreement, and that the 1980 United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified, will not apply to this Agreement and are hereby disclaimed. If Customer is a government entity or entitled to assert sovereign immunity or immunity under the Eleventh Amendment, Customer acknowledges that its obligations hereunder are of a commercial, non-governmental nature and accordingly waives any such immunity.
(h) All notices, demands and other communications shall be in writing and shall be deemed to have been given if delivered personally, or three days after mailing by certified mail (return receipt requested) or overnight carrier to the respective addresses listed on an Order or cover page or to such other address as either Party may designate by providing notice in accordance with this Section.
(i) If any provision(s) of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. At any time, the failure or delay of either Party to enforce any of the provisions of this Agreement will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of either party later to enforce such provision. The express waiver by either party hereto of any provision of this Agreement will not constitute a waiver of any future obligation to comply with such provision.
(j) Neither party hereto may assign its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided that Korbyt may assign any or all of its rights or obligations without the prior consent of Customer (i) to an Affiliate of Korbyt, or (ii) in the case of a merger, acquisition or sale of all or substantially all assets. Any purported assignment in violation of this covenant shall be null and void. Subject to the foregoing, this Agreement will be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. All Third-Party Providers shall be third-party beneficiaries to this Agreement.
(k) Customer acknowledges and agrees that all Third-Party Providers shall be third party beneficiaries to this Agreement. Such Third-Party Providers may seek any legal remedy to enforce their rights, including but not limited to their Intellectual Property Rights, directly against Customer.
(l) This Agreement hereto and all Orders, constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof, respectively, and supersede all previous and contemporaneous agreements and understandings, whether oral or written, with respect to the subject matter hereof and thereof. All remedies stated in this Agreement, except where stated as exclusive, are cumulative and in addition to all other remedies available hereunder, or at Law or in equity. Customer and Korbyt can modify this Agreement only by a writing signed by each party.
(m) Customer represents and warrants that it is not and will not share the benefit of the Service to any entity incorporated in or resident in a country subject to economic or trade sanctions by the U.S. State Department and/or U.S. State Department or U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this Section shall be deemed a material breach of this Agreement and Korbyt may immediately terminate this Agreement.