MASTER SERVICES AGREEMENT
Last Updated: September 19, 2022
IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. This Master Services Agreement (this “Agreement”) describes the terms under which RMG Enterprise Solutions, Inc. dba Korbyt, including its affiliates (“Korbyt“) offers each individual or entity (hereinafter, “Customer”) access to its Services.
By accessing any Service, Customer agrees to comply with and to be bound by the terms of this Agreement, including the policies and guidelines linked to (by way of the provided URLs) from this Agreement. If Customer does not understand or agree with the terms below, please do not use the Service.
This Agreement is incorporated by reference into each Order executed by Customer and shall apply to any Customer Affiliate that executes an Order. Korbyt may amend this Agreement at any time in its sole discretion, effective upon posting the amended Agreement at the domain or subdomains of www.korbyt.com/korbyt-subscription-terms where the prior version of the Agreement was posted, or by communicating these changes through any written contact method Korbyt has established with Customer.
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, “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Confidential Information” means any information, regardless of form, proprietary to or maintained in confidence by either Party, including, without limitation, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by a Party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other Party or any of its employees or agents. The terms and conditions of this Agreement and any Order or SOW will be deemed the Confidential Information of both Parties.
“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 any written or electronic documentation, images, video or text specifying the functionality of the Subscription Services that is provided or made available by Korbyt to Customer.
“Hardware” means the physical devices purchased from Korbyt by Customer pursuant to an Order Form.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm.
“Order Form” or “Order” means an ordering document executed by the Customer, which incorporates by reference the terms of the Agreement, identifies the Services ordered by Customer, sets forth the prices for the 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 as if it were an original party hereto.
“Professional Services” means implementation, site planning, training, creative services, configuration, integration, project management and other consulting services as may be described in an Order Form or SOW.
“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).
“Services” means, collectively, the Professional Services and the Subscription Services.
“SOW” means one or more work orders, work authorizations or statements of work, or similar document that describe the Professional Services for Customer.
“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 specified in an Order Form that Customer has the right to use the Subscription Services and includes any Renewal Terms (as defined in Section 12.2).
“Third-Party Hardware” means all equipment, hardware and components of the Hardware provided by a Third-Party Provider.
“Third-Party Materials” means any Third-Party Software, and any Third-Party Hardware.
“Third-Party Provider” means third parties that provide Third-Party Materials 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 Customer employees, Customer third party consultants, contractors or agents, who access and use the Subscription Services in accordance with this Agreement.
2 USE OF SERVICES
2.1 Access and Use. Subject to the provisions of this Agreement, Korbyt hereby grants Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable right to access and use the Subscription Services for its internal business purposes during the Subscription Term (each, a “Subscription”). Subscription Services are purchased as Subscriptions. Other than Hardware, Customer acknowledges that Korbyt has no delivery obligation and will not ship anything to Customer as part of the Subscription Services. Customer agrees that its Subscriptions hereunder are not contingent on the delivery of any future functionality or features.
2.2 Usage Metrics. Each Subscription is subject to a bandwidth usage limit of 2 gigabytes per endpoint or per user, as the case may be, per month and each cloud account is limited to 500 gigabytes of storage. If Customer exceeds the usage metrics described in this Section, Customer shall pay the then-current rates for the applicable usage metric.
2.3 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 Provider. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Subscription Services. For the avoidance of doubt, updates to the Subscription Services may include bug fixes, patches, error corrections, minor and major releases, non-new platform changes, or modifications or revisions that enhance existing performance. Updates exclude new products, modules or functionality for which Korbyt generally charges a separate fee.
2.4 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. Korbyt will not be liable for any loss that Customer or a User may incur as a result of someone else using an Users’ passwords or accounts, either with or without the applicable Users’ knowledge.
2.5 Professional Services.
2.5.1 Korbyt will perform the Professional Services described in an applicable SOW. Customer agrees to Korbyt’s Professional Services policy, which is available at www.korbyt.com/engagement/legal/professional-services-standards/.
2.5.2 Korbyt may perform Professional Services and develop certain deliverables for customer (“Deliverables”). Korbyt hereby grants Customer, subject to timely payment of applicable fees and charges, and subject to the restrictions in this Agreement, a personal, nonexclusive, non-transferable license for the Subscription Term to use the Deliverables solely in connection with its use of the Subscription Services. Unless specified in a SOW, Korbyt does not provide updates or reintegration work required to make Deliverables compatible with future versions or releases of the Subscription Services.
2.5.3 Customer will (i) timely cooperate and provide all assistance and access to resources reasonably required by Korbyt to perform the Professional Services, (ii) provide a reasonable work environment if the Professional Services are performed on Customer’s premises, (iii) permit Korbyt to control and/or operate all facility controls, systems, apparatus, equipment and machinery necessary to perform the Professional Services; (iv) furnish Korbyt with all information, approvals, permits and consents from government authorities and others as may be required for performance of the Professional Services; (v) notify Korbyt promptly of any site conditions requiring special care, and provide Korbyt with any available documents describing the quantity, nature, location and extent of such conditions; (vi) be solely responsible for, and assume the risk of, any problems resulting from the content, accuracy, completeness and consistency of all data, materials, information and other resources supplied by Customer; and (vii) be solely responsible for its data, including electronically stored data (e.g., data backup, security and virus protection).
3 CUSTOMER’S USE
3.1 Restrictions. Customer shall not (i) license, sublicense, sell, resell, transfer, rent, lease, assign (except as provided in Section 13.5 (Assignment)), distribute, disclose, or otherwise commercially exploit or make available to any third party the Services; (ii) copy, record, extract, scrape, modify or make derivative works based upon the Services; (iii) “frame” or “mirror” the 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 Services, (v) remove, obscure or modify a copyright or other proprietary rights notice in the Services; (vi) use the Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material that violates third party privacy rights; (vii) use the 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 Services; or (viii) permit or assist any other party (including any user) to do any of the foregoing.
3.2 Security. Customer will not: (a) breach or attempt to breach the security of the Services or any network, servers, data, computers or other hardware relating to or used in connection with the Services, or any third-party that is hosting or interfacing with Korbyt; (b) attempt to gain or permit unauthorized access to the Services or related systems or networks including but not limited to conducting any penetration testing, denial of service attacks, or similar efforts on the Services or any network, servers, data, computers or other hardware relating to or used in connection with the Services, or (c) use or distribute through the Services any software, files or other tools or devices designed to interfere with or compromise the privacy, security, or use of the Services or the operations or assets of any other customer of Korbyt or any third party.
3.3 Breach by User. Any failure by a User to comply with this Agreement is deemed to be a breach by Customer, and Korbyt shall not be liable for any damages incurred by Customer or any third party resulting from such breach. Customer shall immediately take all necessary steps, including providing notice to Korbyt, to effect the termination of an Log-In information for any User if there is any compromise in the security of that Log-In information or if unauthorized use is suspected or has occurred.
3.4 No Protected Information. Customer acknowledges and agrees that use of the Subscription Services does not require Customer to provide any Protected Information to or through the Subscription Services 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 Subscription Services.
4.1 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:
4.2 Exceptions to Support. Korbyt does not provide Support with respect to: (i) Subscription Services that have been altered or modified by anyone other than Korbyt or its licensors; (ii) Subscription Services used other than in accordance with the Documentation; or (iii) errors or malfunction caused by any data, systems or programs not supplied by Korbyt.
5 FEES, TAXES & PAYMENTS
5.1 General. If Customer provides credit card information to Korbyt, Customer authorizes Korbyt to charge such credit card for all Subscription Services listed in the Order Form for the Subscription Term. If the Order Form specifies that payment will be by a method other than a credit card, Korbyt will invoice Customer in advance. Customer shall pay the fees specified in the applicable Order Form within 30 days of the invoice date. Except as otherwise specified herein or in an Order Form, (i) Subscription fees are based on Subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term.
5.2 Taxes. Customer is responsible for payment of all applicable sales, use, value added or similar taxes (excluding those on Korbyt’s net income) imposed by a federal, state, provincial, local or other government entity relating to the provision of the Services.
5.3 Invoicing. Korbyt will invoice Customer for (i) Hardware fees upon shipment of applicable Hardware; (ii) Subscription fees for Subscription Services annually in advance of each year of the Subscription Term; and (iii) Professional Service fees on a (A) fixed price basis will be invoiced in advance of performance, or (B) time and materials basis will be invoiced monthly.
5.4 Late Payment. If any invoiced amount is not received by Korbyt by the due date, then without limiting Korbyt’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
5.5 Disputed Fees. Customer may reasonably and in good faith dispute an invoiced amount within thirty (30) days after the invoice date, provided that Customer shall promptly pay the undisputed portion of the invoice pursuant to Section 5.1 and may only withhold payment of the disputed portion until the dispute is resolved. The Parties shall negotiate in good faith to resolve any payment dispute within forty-five (45) days. Customer agrees that any billing discrepancies or disputes not brought to the attention of Korbyt within thirty (30) days after the invoice date will be and are hereby waived and the invoiced amount will be deemed to be correct.
5.6 Failure to Pay. Failure to make payments of undisputed amounts pursuant to this Section 5 is a material breach of this Agreement and Korbyt may suspend its performance obligations in accordance with the provisions of 12.4. Amounts paid or payable for the Subscription Services are not contingent upon the delivery of any future functionality or features.
5.7 Expenses. Fees are exclusive of any shipping costs, travel, lodging or other living expenses incurred in Korbyt’s performance. Korbyt will invoice Customer for all reasonable expenses incurred in providing the Services. Korbyt will provide reasonable documentation evidencing such expenses. Customer will promptly reimburse Korbyt for any and all such expenses. Unless otherwise specified in an Order Form, packaging for commercial shipment of Hardware is included in the quoted fees. When any other packaging is specified, involving a greater expense than the cost of commercial shipment packaging, Korbyt will add a charge to cover such extra expense.
6 SECURITY STANDARDS AND SAFEGUARDS.
6.1 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 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.
6.2 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 a Service involves the processing of personal data of data subjects (as defined by applicable data protection legislation) located within the European Economic Area, Switzerland, or UK on behalf of Customer, then the Parties agree that Korbyt’s data protection agreement located at https://www.korbyt.com/engagement/legal/data-protection-addendum/ shall apply.
7 WARRANTIES AND DISCLAIMERS.
7.1 Mutual Warranty. Each Party represents and warrants to the other that: (i) it has the full 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, when executed by both Parties, 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.
7.2 Korbyt Warranty. Korbyt represents and warrants that (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Subscription Services shall perform materially in accordance with the Documentation, and (iii) the Professional Services will be performed in a professional and workmanlike manner.
7.3 Customer Warranty. Customer represents and warrants that Customer and those providing information to Customer have the right to transmit to Korbyt, and receive from Korbyt, any Content, 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.
7.4 Hardware Warranty. Korbyt’s limited warranty for the Hardware is set forth in Schedule A.
7.5 Disclaimers. 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.
8 PROPRIETARY RIGHTS
8.1 Korbyt’s Intellectual Property Rights. As between Korbyt and Customer, all rights, title, and interest in and to all intellectual property rights in the Services, Content and Deliverables (including all components, derivatives, modifications and enhancements) are and will be owned exclusively by Korbyt notwithstanding any other provision in this Agreement or an Order Form. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, Content or Deliverables. All rights, title and interest in or to any copyright, trademark, service mark, trade secret, patents, and other proprietary right relating to the Services and the related logos, product names, etc. are reserved and all rights not expressly granted are reserved by Korbyt.
8.2 Customer Data. 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 such data as contemplated by this Agreement. Customer hereby grants to Korbyt during the Subscription Term a royalty-free, fully-paid, non-exclusive, non-transferable (except as set forth in Section 13.5 (Assignment)), 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.
9.1 Obligations. The receiving Party shall not disclose or use any Confidential Information of the disclosing Party for any purpose outside the scope of this Agreement, except with the disclosing Party’s prior written permission. Each Party shall protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care). If the receiving Party is compelled by law to disclose Confidential Information of the disclosing Party, it shall provide the disclosing Party with prior written notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at disclosing Party’s cost, if the disclosing Party wishes to contest the disclosure, and the receiving Party shall continue to treat this information as Confidential Information for all other purposes.
9.2 Exceptions. The receiving Party will not be obligated under this Section 9 for any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (ii) was known to the receiving Party prior to its disclosure by the disclosing Party; (iii) was independently developed by the receiving Party without use of or reference to any Confidential Information or breach of any obligation owed to the disclosing Party; or (iv) is received from a third party without restriction and without breach of any obligation owed to the disclosing Party.
9.3 Prior Non-Disclosure Agreement. Any existing non-disclosure agreement entered into by the Parties is hereby superseded, terminated and replaced by the terms in this Section 9, which will govern all disclosures and exchanges of Confidential Information made by the Parties previously under that agreement.
10.1 Korbyt Indemnity. Korbyt shall indemnify, defend and hold Customer harmless against any and all damages finally awarded against Customer by a court of competent jurisdiction, or agreed to in a written settlement agreement signed by Korbyt, arising out of any claim or lawsuit by a third party (a “Claim”) against Customer to the extent such Claim alleges: that the use of the Subscription Services by Customer in accordance with the terms of this Agreement, infringes any patent, copyright or federally registered trademark, or misappropriates a trade secret of a third party. If Customer’s use of the Subscription Services is enjoined or Korbyt determines that such use may be enjoined, then Korbyt may, at its sole option and expense, either, (a) modify the Subscription Services to be non-infringing, (b) obtain for Customer a license to continue using the Subscription Services, or (c) if neither (a) nor (b) are practical in Korbyt’s sole judgment, terminate the affected Subscription Service and return to Customer the unused portion of any fees paid for the affected Subscription Services. The foregoing obligations of Korbyt do not apply to the extent that the alleged infringement claim (i) results from any change made by Customer or any third party for the Customer, (ii) could have been avoided by using an unaltered current version of the Subscription Services which was provided by Korbyt, (iii) is based upon any information, design, specification, instruction, software, data, or material not furnished by Korbyt, or any material from Customer, a third party portal or other external source that is accessible to Customer within or from the Subscription Services (e.g., a third party Web page accessed via a hyperlink.
10.2 Customer Indemnity. Customer shall: (a) defend Korbyt against any Claim against Korbyt to the extent the Claim results from (i) Customer Data; or (ii) Customer’s breach of Section 3.1; and (b) pay any damages awarded against Korbyt for the Claim or any amounts agreed by Customer and the claimant for the settlement of the Claim.
10.3 Procedures. The Party seeking indemnity under this Section 10 (the “Indemnified Party”) must: (a) notify the other Party (the “Indemnifying Party”) promptly in writing of the Claim, specifying the nature of the Claim and such relief as is sought therein; (b) tender to the Indemnifying Party sole control of the defense or settlement of the Claim at the Indemnifying Party’s expense, provided, however, the Indemnifying Party may not settle a Claim in a manner that would have an adverse impact on the business of the Indemnified Party without receiving the prior written consent of the Indemnified Party; and (c) cooperate and, at the Indemnifying Party’s expense, assist in the defense of the Claim. The Indemnified Party will have the right to participate at its own expense in any Claim or related settlement negotiations using counsel of its own choice.
11 LIMITATION OF LIABILITY.
11.1 LIMITATIONS OF LIABILITY. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 3.1 (RESTRICTIONS), 5 (PAYMENT OF FEES), 10 (INDEMNIFICATION), 13.8 (OFAC), 13.9 (EXPORT) OR FROM PERSONAL INJURY OR PHYSICAL DAMAGE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY, NEITHER PARTY’S LIABILITY HEREUNDER SHALL EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SERVICE IMPLICATED DURING THE 12 MONTHS PRIOR TO THE EVENT TRIGGERING SUCH LIABILITY.
11.2 EXCLUSION OF DAMAGES. IN NO EVENT SHALL EITHER PARTY 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.
12 TERM AND TERMINATION
12.1 Term. Unless this Agreement is earlier terminated in accordance with Section 12.3, this Agreement commences on the Effective Data and continues until the expiration of the Subscription Term of the last outstanding Order Form (“Term”). Except as provided in Section 12.3 below, an Order Form for Subscription Services may not be terminated early by either party prior to the expiration of the Subscription Term.
12.2 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.
12.3 Termination. Either Party may terminate this Agreement or an Order Form immediately upon written notice at any time if: (i) the other Party fails to cure any remediable material breach within 30 days of being notified in writing of the breach; (ii) the other Party ceases business operations; or (iii) the other Party becomes insolvent, generally stops paying its debts as they become due or becomes the subject of an insolvency or bankruptcy proceeding. Where a Party has rights to terminate, the non-breaching Party may at its discretion either terminate the entire Agreement or the applicable Order Form or SOW. Order Forms and SOWs that are not terminated shall continue in full force and effect under the terms of this Agreement. 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.
12.4 Suspension. Korbyt may immediately restrict or suspend access to the Subscription Services if Korbyt becomes aware of, or reasonably suspects, any breach of this Agreement by Customer or its Users. Korbyt will act in good faith and use reasonable efforts to notify Customer via phone or email before initiating suspending or restricting any Services. Customer is still responsible for full payment of the Order Form(s) even if access to the Subscription Services is suspended or terminated for any breach of this Agreement.
12.5 Return of Data. Upon Customer’s written request made within 30 days after the effective date of expiration or termination of this Agreement, Korbyt shall, upon Customer’s payment of all fees for Services then due and owing, make available to Customer for download a file of Customer Data in its then current format. After this 30-day period, Korbyt has no obligation to maintain or provide any Customer Data and shall, unless legally prohibited, delete all Customer Data maintained in its production systems, provided Korbyt may retain archival copies of Customer data on backup media for a reasonable period of time not to exceed two (2) years following expiration or termination of any Order Form.
13.1 Order of Precedence. The terms and conditions of this Agreement control to the extent any terms and conditions of this Agreement conflict with the terms and conditions of an Order Form or SOW, except where the Order Form or SOW specifically states the intent to supersede a specific portion of this Agreement. 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.
13.2 Force Majeure. A Party will be excused from performance under this Agreement for any period of time that the Party is prevented from performing its obligations hereunder as a result of an act of God, criminal acts, distributed denial of service attacks, any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, war, utility or communication failures, or other cause beyond the Party’s reasonable control. Both Parties shall use reasonable efforts to mitigate the effect of a force majeure event.
13.3 Waiver. The delay or failure of a Party at any time to enforce a right or remedy available to it under this Agreement with respect to any breach or failure will not be construed as a waiver with respect to that breach or failure or any other breach or failure.
13.4 Severability. If any provision of this Agreement is held invalid or unenforceable by a court, this Agreement will be construed as if not containing the invalid or unenforceable provision, and the rights and obligations of Customer and Korbyt shall be construed and enforced accordingly.
13.5 Assignment. Except for assignment to a Party’s affiliate (any entity which directly or indirectly controls, is controlled by, or is under common control with such Party), or in the case of a merger, acquisition or sale of all or substantially all assets not involving a direct competitor of the other Party, neither Party may assign any right or obligation set forth under this Agreement without the other Party’s prior written consent, not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Any purported assignment or transfer in violation of this Section 13.5 is void.
13.6 Relationship of the Parties. Each Party is an independent contractor in the performance of this Agreement, and is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection with this Agreement.
13.7 Governing Law. This Agreement is governed by the laws of the State of Texas without giving effect to its conflict of law provisions. For purposes of establishing jurisdiction in Texas under this Agreement, each Party hereby waives, to the fullest extent permitted by applicable law, any claim that: (i) it is not personally subject to the jurisdiction of the court; (ii) it is immune from any legal process with respect to it or its property; and (iii) any suit, action or proceeding is brought in an inconvenient forum. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it. Each Party waives its right to a trial by jury for all matters or disputes arising from this Agreement.
13.8 OFAC. Customer represents and warrants that it is not and will not share the benefit of the Services 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.
13.9 Export. The Services and Documentation, including technical data, may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer shall not export, re- export, divert, or transfer the Services, Documentation or any component thereof to any prohibited destination or to any party who has been prohibited from participating in US export transactions by any federal agency of the US government. Customer agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import the Services and Documentation. Customer shall indemnify Korbyt, including its officers, directors and agents from all losses and liabilities (including reasonable attorneys fees and court costs) arising from any breach of Customer’s representations, warranties or obligations under this Section.
13.10 Entire Agreement; Counterparts. This Agreement contains the entire agreement of the Parties with respect to its subject matter and supersedes all prior agreements on the same subject matter, and shall govern all disclosures and exchanges of Confidential Information made by the parties previously hereto. This Agreement may not be modified except by a writing signed by Korbyt and Customer. This Agreement, Order and/or any SOW may be signed in any number of counterparts all of which together will constitute one and the same document. A signed copy of this Agreement, Order and/or any SOW transmitted via facsimile, email or other electronic means will constitute an originally signed Agreement, Order and/or SOW, as applicable, and, when together with all other required signed copies of this same Agreement or SOW, as applicable, will constitute one and the same instrument.
13.11 Use of Agents. Korbyt may designate an agent or subcontractor to perform certain tasks and functions under this Agreement. However, Korbyt will remain responsible for performance of its duties under this Agreement.
13.12 Publicity. Customer agrees that Korbyt may identify Customer as a recipient of Services and use its logo in sales presentations, marketing materials and press releases.
13.13 Notices. Any notice required or permitted under this Agreement or required by law must be in writing and must be: (i) delivered in person; (ii) delivered by electronic mail to the address listed on the applicable Order Form; (iii) sent by first class registered mail, or air mail, as appropriate; or (iv) sent by an internationally recognized overnight air courier, in each case properly posted and fully prepaid to the contact person specified in the Order Form. Notices will be considered to have been given at the time of actual delivery in person, two (2) business days after deposit in the mail, or one (1) day after delivery to an overnight air courier service, provided in each case that delivery in fact is effected. Either Party may change its contact person or address for notices by means of notice to the other Party given in accordance with this Section.
13.14 Survival. Sections 1, 2, 3, 5, and 8-13 will survive termination of this Agreement.
HARDWARE TERMS AND CONDITIONS
1. DELIVERY AND TITLE
A Shipping and Delivery.
(i) Subject to subpart (ii) of this Section 1(A), Korbyt will ship the Hardware FCA Shipping Point (INCOTERMS 2010); provided, that Customer will reimburse Korbyt the shipping and insurance costs. Korbyt will use Customer’s preferred carrier if Customer provides Korbyt with necessary information and instructions. Otherwise, Korbyt is responsible for delivering the Hardware to its preferred common carrier with Korbyt’s preferred routing instructions, obtaining all appropriate shipping documents, and assuring that the Hardware has been insured for its replacement cost.
(ii) Delivery of the Hardware will be subject to availability of the Hardware. However, any dates quoted for delivery of the Hardware are approximate only, and Korbyt will not be liable for any delay in delivery of the Hardware, regardless of cause.
B Title to Hardware. Title and ownership of the Hardware will pass to Customer upon Customer’s payment for the Hardware.
C Risk of Loss. Risk of loss to the Hardware will pass to Customer upon delivery of the Hardware to the carrier. Customer assumes risk of loss or damages to the Hardware while the Hardware is in transit to Customer. Within ten (10) business days of receipt of the Hardware (or three calendar days for third party displays/TVs), Customer will inspect the Hardware and inform Korbyt of any damages thereto. Should Customer not notify Korbyt of any damage incurred during shipment of the Hardware within the applicable period, Korbyt will be relieved of all responsibility and liability with respect to the damaged Hardware, and Customer will be responsible for any damage claim, repair or replacement of such damaged Hardware. These terms also apply to any Hardware provided to Customer in connection with any warranty for Hardware. Notwithstanding anything in the Agreement and this Attachment to the contrary, risk of loss and title thereto is not subject to Customer’s acceptance of the Hardware.
A Limited Warranty. Korbyt warrants that the supplied Korbyt manufactured Hardware will be materially free from defects and workmanship for a period of one (1) year, commencing on the date of shipment, subject to the following limitations:
(i) The limited warranty extends only to Customer and is not assignable or transferable to any subsequent purchaser or end user;
(ii) Unless Customer purchases an Extended Warranty Plan with the Advance Shipper option as described below, Customer will bear the cost of shipping the Hardware to the Customer technical support department of Korbyt. Customer will bear the cost of shipping the Hardware back to Customer after the completion of service, or to ship replacement Hardware if Korbyt elects replacement as Customer’s remedy under this limited warranty;
(iii) Customer complies with any additional warranty procedures that may be provided from Korbyt from time to time;
(iv) A repair on warranted Hardware is good only for the balance of the warranty, or for ninety (90) days from the date of the repair, whichever is longer;
(v) at Customer’s expense, uninstall, pack and ship any Hardware needing Support to the address provided in the Return Material Authorization; and
(vi) install any replacement Hardware when received;
B Warranty Exclusions. The limited warranty provided for in Section 2(A) of this Schedule and the warranty remedies provided for in Section (C) of this Schedule not cover:
(i) Third Party Hardware;
(ii) defects or damages resulting from use of the supplied Hardware in other than its normal and customary manner, or in an environment or in a manner or for a purpose for which the Hardware was not designed;
(iii) defects or damages from incorrect or abnormal use, abnormal conditions (including without limitation, results of force majeure event), power surges or other irregularities, failure to perform recommended maintenance or improper maintenance, improper handling, or storage, exposure to moisture or dampness, unauthorized modifications, unauthorized connections, unauthorized repair (successfully or not), or had parts replaced by any party other than Korbyt or an Korbyt authorized repair facility, misuse, neglect, abuse, accident, alteration, improper installation, or other acts which are not the fault of Korbyt, including damage caused by shipping, spills of food or liquid;
(iv) breakage or damage unless caused directly by defects in material or workmanship;
(v) claims in which the technical support department at Korbyt was not notified by Customer of the alleged defect or malfunction of the supplied Hardware during the applicable limited warranty period;
(vi) Hardware which have had the serial number removed or made illegible;
(vii) Hardware that was not purchased by Customer from Korbyt or its authorized resellers;
(viii) claims caused by Third-Party Materials;
(ix) damage due to normal wear and tear;
(x) consumables such as fuses and batteries; or
(xi) any other cause not wholly and directly attributable to a defect in the Hardware.
C Warranty Remedies. As Customer’s sole and exclusive remedy for any warranty claim with respect to Korbyt manufactured Hardware, during the warranty period, Korbyt will, at its sole option, either repair, replace or refund the purchase price of the Hardware of any supplied Hardware that is covered under this limited warranty. Korbyt will not be required to repair or replace more than the components of the Hardware actually found to be in breach of the limited Hardware warranty provided in this Schedule, and repaired or replaced Hardware will be warranted under this Schedule only for the remaining portion of the original warranty period. Korbyt may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units. In addition, Korbyt will not back-up any data or Content that Customer has added to the Hardware. Where Customer returns any Hardware, and after evaluation, Korbyt finds no non-conformity to the warranty, Korbyt may return the Hardware to Customer, and Customer shall pay Korbyt its standard “no trouble found” (“NTF”) or equivalent fee.
D Third-Party Hardware. Third-Party Hardware warranty and support is only available from the manufacturer, except under separate agreement. Korbyt does not provide any services for Third-Party Hardware that is not manufactured by Korbyt. These products fall under the normal pass-through warranties provided by the manufacturer. Korbyt will pass-through to Customer any applicable Third-Party Hardware warranties from Third-Party Providers that Korbyt is legally able to transfer.
3. HARDWARE EXTENDED WARRANTY PLANS
Two Extended Warranty Plans which continue the repair or replacement benefit for non-conforming Hardware are available for purchase by Customer. Either type of plan must be purchased only at the time, and as part, of the original Hardware purchase for the full term of the applicable plan: (a) Hardware Extended Warranty Plan with the Advance Shipper feature: Priced at a percentage of the then current list price of all Hardware covered, as specified in the current price list, per year, Customer may select the Hardware Extended Warranty Plan with the Advance Shipper feature for the first three (3) years beginning with the original purchase of Korbyt Hardware, providing a total of three years’ warranty coverage. If Customer has purchased this feature, and it notifies Korbyt that Hardware provided under this Agreement does not conform to the applicable warranty, and Korbyt has issued the appropriate return materials authorization: (i) Korbyt will ship, at Customer’s expense, replacement Hardware to Customer; Customer may select and pay to receive the replacement Hardware the next business day after receipt of Customer’s notice, or pay for and use standard shipping instead; and (ii) Customer will provide paid transport to return the defective Hardware to Korbyt’s facilities once uninstalled by Customer. Korbyt Networks Smart Screens are not eligible for Advance Shipper Support and (b) Hardware Extended Warranty Plan (without Advance Shipping feature): In the alternative, Customer may select a Hardware Extended Warranty Plan as priced at a lower percentage of the current list price of all Hardware covered, as specified in the current price list per year, that does not include the Advance Shipper feature. If selected, this Plan begins upon expiration of and continues the one (1) year limited Hardware warranty described under Section 2 of this Schedule for two additional years, providing a total of three years’ warranty coverage. With either Extended Warranty plan:
(i) Third Party Hardware is excluded from the Extended Warranty plans;
(ii) The terms of Section 2 of this Schedule, Warranties shall apply to any Extended Warranty plan, except as expressly excluded or changed by this provision;
(iii) For both plans, Customer will be responsible for removal and reinstallation of the Hardware and any associated costs and for shipping costs each way for the type of delivery desired (overnight or standard shipping);
(iv) Korbyt may elect, at its sole option, to use functionally equivalent re-conditioned, refurbished or new units or parts of any units as replacement units;
(v) Korbyt may substitute a functionally equivalent model if the Customer’s model of Hardware is no longer commercially available; and
(vi) Korbyt retains the right to impose an NTF or equivalent fee for returned Hardware where Korbyt finds no non-conformity to the warranty.