End User License Agreement
THIS END USER LICENSE AGREEMENT is made between Lockpath, Inc., a Delaware corporation, with its principal place of business at 6240 Sprint Parkway, Suite 100, Overland Park, KS 66211 (“Lockpath”), and the client identified on any applicable Purchase Schedules (together with its employees, agents, and representatives, collectively referred to herein as “Client”). “Party” or “Parties” means, individually, Client or Lockpath and, collectively, Client and Lockpath.
The Client agrees to the terms and conditions of this license agreement and by execution of any Purchase Schedule(s) which are incorporated herein by this reference (collectively, the (“Agreement”) and constitute the entire agreement of the Parties and supersede all prior agreements, both oral and written, with respect to such subject matter. In the event of a conflict between the Agreement and any Purchase Schedules hereto, the terms of the applicable Purchase Schedules(s) shall govern such conflict, then the Agreement. This Agreement is effective on the date indicated on the applicable Purchase Schedule(s) executed by Client (Effective Date).
“Additional Services” means any services, other than the provision of Keylight and Maintenance and Support, to be provided by Lockpath identified in any Purchase Schedule.
“Authorized Users” may only be employees, independent contractors, agents, representatives or vendors of Client designated and authorized by Client to access and use Keylight. Access and use of the Keylight licenses are for Client’s Authorized Users only, with accounts designated to individual users which cannot be shared or used concurrently by more than one user. Keylight license access and use may be reassigned to new Authorized Users replacing former individuals who no longer require a license.
“Client Data” means all data and information submitted, uploaded or otherwise entered by Client or its Authorized Users into Keylight, including without limitation, any data submitted, uploaded or otherwise entered or provided through email, documents, spreadsheets or other methods. Client Data also includes Client’s Confidential Information and Client’s Intellectual Property.
“Confidential Information” means (a) all nonpublic information concerning the business, technology, products, services, internal structure and strategies of the disclosing Party, specifically including, without limitation, Keylight and Additional Services, and content and information made available in conjunction therewith, Documentation, end-user materials, Work Product, Intellectual Property, pricing, proposals, designs, concepts, methodologies, inventions, source or object code, developments, research, programs, databases, referral sources, customers, prospective customers, inventions, developments, “know-how”, procedures, infrastructure, security, financial information or licensing policies; and (b) any other information clearly labeled by the disclosing Party in writing as “confidential” or without labeling as such, would reasonably be considered to be confidential prior to its disclosure. The following information will not be considered Confidential Information: (i) information which was in the public domain prior to its disclosure; (ii) information which becomes part of the public domain by any means other than through violation of this Agreement; (iii) information independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, or (iv) information received from a third party not under any obligations of confidentiality.
“Designated Location” shall mean the physical location(s), approved by Client and Lockpath, for the deployment of Keylight installed on Client’s devices as set forth in the applicable Purchase Schedule.
“Designated Use” shall mean (a) for the software, the right to install, load, utilize, store and display Keylight, solely for Client’s internal business purposes; (b) for the Lockpath Keylight platform and specified applications, use solely by the number of users set forth in the applicable Purchase Schedule(s); (c) for the Lockpath Keylight connectors, use solely of such connectors specified in the applicable Purchase Schedules(s), (d) for the Lockpath Keylight content, use solely for Client’s internal business purposes; and (e) any other use either mutually agreed to in writing between the Parties or as identified on any applicable Purchase Schedule.
“Documentation” shall mean the standard written materials regarding the specifications of the software provided by Lockpath with Keylight.
“Fees” shall mean the fees, costs, expenses and any other charges for Keylight, Maintenance and Support, and for any Additional Services as set forth in a Purchase Schedule.
“Intellectual Property” means all intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyright ability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, including all goodwill pertaining thereto and in each case, on a worldwide basis.
“Keylight” means the Keylight™ application (including related documentation, content and materials provided in conjunction therewith) as identified in a Purchase Schedule, including any changes, modifications, improvements and enhancements provided by Lockpath pursuant to this Agreement.
“Purchase Schedule” means any addenda, proposals, purchase schedule(s), order confirmations, or other order forms attached to and executed pursuant to this Agreement which Client may order licenses to Keylight and Additional Services.
“Work Product” means all deliverables and Intellectual Property delivered by Lockpath to Client pursuant to the applicable Purchase Schedule(s).
2. KEYLIGHT LICENSE
2.1 Keylight License Grant. Effective upon the payment in full of the Fees and subject to Client’s compliance with the terms of this Agreement, Lockpath grants to Client a perpetual, worldwide, non-transferable, non-sublicensable, non-exclusive license to use for internal business purposes, the software delivered pursuant to this Agreement in accordance with: (a) the applicable Documentation; (b) the Designated Use; and (c) any other restrictions set forth in applicable Purchase Schedule(s), subject to the user, version, module and quantity limitations identified. Client is responsible for ensuring that only Authorized Users access and use Keylight using Authorized User account information, that Authorized Users have been trained in proper use of Keylight, and that Authorized Users do not make unauthorized use of Keylight. Client is responsible for the security and confidentiality of any usernames or passwords granted to Authorized Users to access Keylight, and shall not disclose such usernames and passwords to other parties. Client is responsible for any authorized or unauthorized access to or use of Keylight using such usernames and passwords, and any actions taken thereunder. Client shall use its best efforts to ensure that Lockpath’s Confidential Information and the Lockpath Intellectual Property are kept secure and protected from unauthorized access or disclosure. Client must provide and maintain accurate and complete registration information with Lockpath, including, without limitation, name, email address and other contact information.
2.2 . Unauthorized Use: Unauthorized use includes, without limitation: (a) attempts to gain access to other user accounts or data of other Lockpath clients; (b) accessing Keylight through any technology or means other than through the user account information provided to Authorized Users or through Lockpath’s website(s); (c) use of Keylight to disseminate, store or transmit viruses, Trojan horses or any other malicious code or programs; (d) entering into or transmitting any information using Keylight that is unlawful, false, offensive, defamatory or infringes the rights of any person; (e) using Keylight or any information obtained through Keylight for purposes other than for which it was provided or in excess of the rights granted in this Agreement; (f) disseminating or otherwise making available any proprietary materials or information made available through Keylight to third parties unrelated to Client’s internal business needs without the prior written consent of Lockpath; and (g) any use of Keylight or the information contained in Keylight in violation of any applicable statute, law, rule or regulation or the legal rights of a third person.
2.3 Installation and Acceptance. Lockpath will make the installation guide and Keylight application files available for Client to download, upon which installation and acceptance has occurred (“Deploy Date”).
2.4 Transfer among Client Hardware. In support of its authorized use of Keylight and in accordance with the terms of this Agreement, Client may physically transfer the Keylight application from one device to another. During the Term, all proprietary and/or other notices of Lockpath or its licensors, if any, shall be provided and maintained on Keylight at all times. Client may not install Keylight onto systems in locations other than the Designated Location without Lockpath’s prior written consent; provided that Client may temporarily transfer Keylight to another United States location solely in the event of an interruption of computer operations at the Designated Location and only for the period of time necessary to resolve such interruption. Client shall promptly notify Lockpath of such transfer and upon restoration of Keylight to the Designated Location.
2.5 Backup Copies. Client may make a single copy of the Keylight application in machine-readable, object code, executable form solely for nonproduction disaster recovery, back-up purposes; provided that, Client shall reproduce all of Lockpath’s and its licensors’ copyright notices and other proprietary legends on such backup copy. Client shall use commercially reasonable measures to ensure that such backup copy is stored in a safe and secure location. Any backup copy shall be accounted for immediately upon Lockpath’s request. For the avoidance of doubt, Client is not provided a sandbox or test license unless purchased.
2.6 Prohibitions. Under no circumstances may Client modify, create derivative works based on, decompile, reverse compile, disassemble or reverse engineer Keylight, or grant any other person or entity the right or access to do so, without the advance written consent of Lockpath (except as specifically allowed under applicable copyright or other laws). Except as expressly authorized by this Agreement, Client shall not unbundle, sublicense, assign, transfer, display, distribute, rent, or lease access to Keylight or any portion thereof to any third party. Client may not access or utilize Keylight for competitive purposes or to develop applications or services competitive with Keylight.
2.7 Reserved Rights. All rights not specifically granted to Client hereunder are reserved by Lockpath. Nothing herein shall prevent Lockpath or its licensors from promoting, providing, or selling licenses for the use of or access to Keylight or providing any Additional Services to other parties.
3. OBLIGATIONS OF THE PARTIES
3.1 Maintenance and Support. Effective upon the payment in full of the Fees and subject to compliance with the terms of this Agreement, Lockpath will provide to Client the following “Maintenance and Support” relating to the purchased Keylight applications during the Initial Term and any Renewal Terms on the following terms: (a) Lockpath will accept an unlimited number of good faith telephone or electronic mail inquiries and consultations from the contact person designated by Client as the responsible point of contact between Lockpath and Client with authority to request and approve client support services provided under this Agreement (the “Client Contact”) regarding use of Keylight and any related problems and changes. Such telephone or electronic mail support will be available Monday through Friday during Lockpath’s normal business hours, excluding reasonable business holidays, with 24 x 7 access to Lockpath’s web support portal. Lockpath will provide any new patches or updates made to Keylight which are generally made available at no additional charge to all of its current Clients purchasing Maintenance and Support and that are issued to correct program operations or to update the software (each, an “Update”); provided that, if the executable program portion of Keylight is loaded on more than one computer at the Designated Location, Client shall be responsible for distributing and loading any Updates on Client’s other computers at the Designated Location after Lockpath has provided such Update for a single computer. The Maintenance and Support includes “Upgrades” to Keylight, which include future versions, modifications, enhancements, and releases made by Lockpath to Keylight; and any services not provided for in this Section, including, without limitation, additional reports, modified or additional data entry screens or methods, interfaces between Keylight and any of Client’s other automated systems, database administration services, database revisions, training, and technical assistance to data processing staff are not covered under the Maintenance and Support for Keylight. Any such Additional Services requested by Client and shall be addressed under the terms of separate provisions of this or additional executed Purchase Schedules.
3.2 Maintenance and Support Renewal. Maintenance and Support will automatically renew on Renewal Term dates unless thirty (30) days’ prior written notice is provided by Client to Lockpath. Client may reinstate terminated Maintenance and Support by paying for the Maintenance and Support periods from termination date up to and including the period for which it is reinstated, provided however that any reinstatement shall be at then-current Maintenance and Support terms and fees. Commencing on the second Renewal Term, Lockpath may increase Maintenance and Support fees up to 10%, provided Client is notified in writing no less than 60 days prior to Renewal Term.
3.3 Support Exclusions. Lockpath will have no obligation of any kind to support third-party software not provided by Lockpath. Lockpath will have no obligation of any kind to provide Maintenance and Support for problems in the operation or performance of Keylight to the extent caused by any of the following (each, a “Client-Generated Error”): (a) modification, alteration or damage not permitted, authorized or reasonably anticipated by Lockpath; (b) failure to use the then-current version of Keylight or two Upgrades back; (c) Client’s negligence, hardware malfunctions or other causes beyond the reasonable control of Lockpath; (d) use of Keylight in conjunction with third-party software or hardware not provided or approved in writing by Lockpath prior to installation; (e) failure of Client to install any Updates provided by Lockpath; or (f) use of Keylight not in accordance with the Agreement. If Lockpath determines that it is necessary to perform Additional Services for a problem in the operation or performance of Keylight that is caused by a Client-Generated Error, Lockpath will have the right, if it elects in its sole discretion, to perform such Additional Services and to invoice Client at Lockpath’s then-current time and materials rates for all such Additional Services.
3.4 Regulatory Compliance; Suitability. Client shall be solely responsible for ensuring that its Authorized Users’ use of Keylight and all related Client policies and procedures are in compliance with all applicable laws and regulations governing its operations or business. Client shall be solely responsible for determining the suitability of Keylight for its operations and whether Keylight will achieve the results Client desires.
3.5 Client Data. Keylight allows Client to upload Client Data into Keylight. Because Client Data is selected and uploaded by Client and its Authorized Users, Lockpath does not control such Client Data. In connection with Client Data, Client affirms, represents and warrants that it owns or has the necessary licenses, rights, consents and permissions to use, and authorize Lockpath to use, Client Data and to enable inclusion and use of the Client Data in the manner contemplated hereunder. As between the Parties, Client retains all ownership rights in the Client Data. Client is solely responsible for the accuracy, content, currency, completeness and delivery of the Client Data uploaded by its users.
3.6 Access and Site Preparation. Client shall provide Lockpath with reasonable access at the Designated Location(s) or otherwise to its personnel, facilities, databases, systems, information, security clearances and any other reasonable assistance to facilitate the performance by Lockpath of its obligations under this Agreement. Client will provide all assistance reasonably required by Lockpath to support installation and configuration of Keylight in the event Lockpath is engaged to provide those Additional Services. Client agrees to prepare the Designated Location(s) and Client’s equipment, at Client’s sole expense, for installation and implementation of Keylight in accordance with the specifications communicated to Client by Lockpath.
3.7 Additional Obligations. Client and Lockpath are responsible for such additional obligations, if any, as set forth in this Agreement, including any attached Purchase Schedule(s), exhibits and schedules.
3.8 Audit. Lockpath may conduct audits to ensure that Client and its users are in compliance with this Agreement. Such audits will be conducted during normal business hours upon reasonable advanced notice, and Client will provide Lockpath with reasonable access necessary to verify compliance. If an audit reveals that Client’s use of Keylight during the period being audited exceeds the scope of Client’s license or access rights as set forth in any applicable Purchase Schedule(s), then Lockpath may invoice Client for all such excess use based on Lockpath’s then-current rates in effect at the time the audit is completed, and Client shall pay such invoice within ten (10) days of such invoice. If such excess use exceeds ten percent (10%) of the subscribed-for use in any applicable Purchase Schedule, the Client shall also pay Lockpath’s reasonable costs of conducting the audit.
4. ADDITIONAL SERVICES
4.1 Additional Services. Client may engage Lockpath to provide certain professional, educational, operational, support and/or technical services in connection with Keylight set forth in any Purchase Schedule. Subject to the terms and conditions of the Agreement, Lockpath will provide Client with Additional Services as set forth in a Purchase Schedule. Each Purchase Schedule will include, at a minimum: (a) a description of the Additional Services and any Work Product or other deliverables and/or training materials to be developed and/or provided to Client; (b) the scope of Additional Services; and (c) the applicable fees and payment terms for such Additional Services. All statements of work set forth in any applicable Purchase Schedule are part of and subject to this Agreement. .
4.2 Cooperation. Client will cooperate with and assist Lockpath in performing the Additional Services. Among other things, Client shall provide to Lockpath timely access to complete and accurate Client Data and will provide Lockpath other resources and information as reasonably requested by Lockpath. Client’s failure to do so will relieve Lockpath of responsibility for any related deficiencies in its performance.
4.3 Change Management Process. In the event that Client or Lockpath requests a change in any of the specifications, requirements, Work Product, or scope (including drawings and designs) of the Additional Services, the Party seeking the change shall propose the applicable changes by written notice. Within two (2) business days of receipt of the written notice, each Party’s project leads shall meet, either in person or via telephone conference, to discuss and agree upon the proposed changes. Lockpath will prepare a change order describing the proposed changes and the applicable change in fees and expenses, if any (each, a “Change Order”). Change Orders are not binding unless and until they are executed by both Parties. Executed Change Orders are part of, and subject to, this Agreement. In the event that the Parties disagree about the proposed changes, the Parties shall promptly escalate the change request to their respective senior management officers for resolution. Notwithstanding the foregoing, Lockpath reserves the right to change the fees for certain Additional Services at any time during the Term upon thirty (30) days’ prior written notice to Client
4.4 Place of Performing Additional Services. Unless otherwise noted in a Purchase Schedule, Lockpath will perform the Additional Services pursuant to this Agreement at (a) Lockpath’s premises, (b) Client’s premises Monday through Friday, 8:00 a.m. to 5:00 p.m., or (c) any other time or location as set forth in any applicable Purchase Schedule.
4.5 Additional Services Warranty. Lockpath warrants that: (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform Additional Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the services in accordance with the applicable Purchase Schedule; and (b) the Additional Services will be performed for and delivered to Client in a good, diligent, workmanlike manner in accordance with industry standards, laws and governmental regulations applicable to the performance of such services. Lockpath’s ability to successfully perform hereunder is dependent upon Client’s provision of timely information, access to resources, and participation. If through no fault or delay of Client the Additional Services do not conform to the foregoing warranty, and Client notifies Lockpath within sixty (60) days of Lockpath’s delivery of the Additional Services, Client’s sole and exclusive remedy is to have Lockpath re-perform the non-conforming portions of the Additional Services.
5. FEES AND PAYMENT
5.1 Fees. Client shall pay Lockpath Fees in the amount, at the times and in the manner set forth in the applicable Purchase Schedule(s). Fees are based on licenses purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable. Client may add additional licenses at any time during the Initial Term and any Renewal Terms with additional Purchase Schedule(s). Fees for Maintenance and Support for additional licenses are adjusted to be coterminous with the relevant Initial Term or Renewal Term. Fees for Maintenance and Support are based on monthly periods that begin on the Deploy Date and each monthly anniversary thereof; therefore, fees for Maintenance and Support assessed in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Initial Term or Renewal Term. Unless otherwise specified in a Purchase Schedule, fees for Additional Services and related expenses will be invoiced by Lockpath as incurred and are due upon receipt.
5.2 Taxes. Fees do not include any applicable taxes or duties, including without limitation, state and local use, sales and property taxes and duties. Client is responsible for all taxes and duties incurred as a result of its license and use of or access to Keylight and any Additional Services (except for any taxes levied upon Lockpath’s income).
5.3 Payment. If Client does not comply with Lockpath’s terms, Lockpath may declare Client in breach, suspend further Maintenance and Support for Keylight or provision of any Additional Services and/or terminate this Agreement at Lockpath’s sole option and pursue any or all of the following remedies: (a) collect interest at the lower of the rate of 1.5% per month or the maximum interest rate allowed under applicable law on all invoices older than thirty (30) days; (b) declare all unpaid balances, including interest, immediately due and/or (c) any other remedies available at law or in equity.
5.4 Reimbursement of Expenses. Unless otherwise noted in a Purchase Schedule, Client shall reimburse Lockpath for any reasonable out-of-pocket expenses actually incurred by Lockpath and approved in advance by Client relating to Lockpath’s performance of its obligations under this Agreement.
6. TERM & TERMINATION
6.1 Term. This Agreement remains in effect from the Effective Date and continue for the Initial Term and any Renewal Terms set forth in each applicable Purchase Schedule(s) (collectively, the “Term”).
6.2 Termination with Cause. Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party, in the event that the other party: (a) materially breaches any provision of this Agreement and fails to cure such material breach within such 30-day period, or (b) is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes a general assignment for the benefit of creditors or admits in writing its inability to pay debts when due. Additionally, Lockpath may immediately suspend or terminate this Agreement upon written notice to Client (i) pursuant to Section 5.3, or (ii) in the event Client or its Authorized Users violate any Lockpath Intellectual Property rights or otherwise breach the provisions of Sections 2 or 9 of this Agreement.
6.3 Consequences upon Termination. Upon the termination or expiration of this Agreement for any reason: (a) Client’s right to access and use Keylight and Lockpath’s obligations to provide Keylight, Maintenance and Support, and Additional Services shall immediately and automatically terminate, Client shall cease all access to and use of Keylight, and Client shall not thereafter use, advertise, or display any Lockpath Intellectual Property; (b) Client shall immediately return to Lockpath all Lockpath Intellectual Property and any other property, equipment and materials provided to Client by Lockpath (whether modified or unmodified), or immediately destroy such property at Lockpath’s sole option; and (c) Client shall certify its compliance with this section to Lockpath in writing. In the event this Agreement is terminated for any reason other than Lockpath’s breach of the Agreement, Lockpath shall be entitled to retain all prepaid amounts and Fees.
7. WARRANTY DISCLAIMERS & LIMITATION OF LIABILITY
7.1 Warranty. Lockpath represents and warrants that: (a) it has full power and authority to execute and deliver this Agreement and any applicable Purchase Schedules; (b) during the Term, Keylight shall perform materially in accordance with the documentation, content and materials provided in conjunction therewith; (c) it will employ reasonable safeguards, consistent with industry standards, against harmful or malicious code, files, scripts, agents, or programs; and (d) as provided by Lockpath to Client, Keylight does not infringe the Intellectual Property rights of any third party.
7.2 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, KEYLIGHT AND ANY ADDITIONAL SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND AND LOCKPATH HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, RELATING TO KEYLIGHT OR ANY ADDITIONAL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ANY WARRANTY, GUARANTEE, OR REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF KEYLIGHT OR ANY ADDITIONAL SERVICES. LOCKPATH DOES NOT VERIFY, ERROR-CHECK OR WARRANT THE ACCURACY OR FITNESS OF ANY INFORMATION UPLOADED OR ENTERED INTO KEYLIGHT. LOCKPATH IS NOT RESPONSIBLE FOR ANY DEFECT CAUSED BY OR THAT OTHERWISE RESULTS FROM MODIFICATIONS, MISUSE OR DAMAGE TO KEYLIGHT MADE, PERMITTED OR OTHERWISE CAUSED BY CLIENT IN WHOLE OR IN PART.
WHILE LOCKPATH AND ITS CONTENT PROVIDERS USE COMMERCIALLY REASONABLE EFFORTS TO UPDATE KEYLIGHT WITH CONTINUALLY CHANGING LAWS, CODES, STANDARDS, REQUIREMENTS AND REGULATIONS (COLLECTIVELY, “LAWS”), INFORMATION AND FORMS, CLIENT MUST ALWAYS EXAMINE THE MOST CURRENT LAWS, INFORMATION, AND FORMS AND MAKE DETERMINATIONS AS TO THEIR APPLICABILITY TO CLIENT’S SITUATION TO ENSURE THAT CLIENT IS IN FULL COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS. LOCKPATH DOES NOT WARRANT THAT USE OF KEYLIGHT WILL RESULT IN CLIENT’S COMPLIANCE WITH ANY APPLICABLE LAWS, AND CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT CLIENT IS SOLELY RESPONSIBLE FOR ENSURING ITS COMPLIANCE WITH ANY APPLICABLE LAWS.
7.3 Limitation of Liability. EXCEPT FOR SECTION 7.4 (INDEMNIFICATION BY CLIENT), SECTION 7.5 (INDEMNIFICATION BY LOCKPATH), SECTION 9.1 (INTELLECTUAL PROPERTY RIGHTS), SECTION 9.2 (OWNERSHIP OF WORK PRODUCT), SECTION 9.3 (CONFIDENTIAL INFORMATION), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, KEYLIGHT, ANY ADDITIONAL SERVICES OR THE INTERNET GENERALLY, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE AND EVEN IF LOCKPATH WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. LOCKPATH’S TOTAL LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED THE AMOUNT EQUAL TO THE TOTAL FEES PAID BY CLIENT WITHIN THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD.
7.4 Indemnification by Client. Client shall indemnify, defend and hold Lockpath, and its officers, shareholders, directors, employees, agents and affiliates (each, a “Lockpath Indemnified Party”) harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought or threatened by a third party against any Lockpath Indemnified Party relating to: (a) a breach or alleged breach by Client or its Authorized Users of any of its representations, warranties, covenants or obligations under this Agreement; (b) Client’s or its Authorized Users’ use, misuse or failure to use Keylight or Work Product, (c) infringement or misappropriation of any Lockpath Intellectual Property or the Intellectual Property rights of any third party by Client or its users; or (d) any Client Data uploaded by Client or its Authorized Users in Keylight; provided that, such cost, liability, loss or expense was not caused solely by the gross negligence or intentional misconduct of Lockpath.
7.5 Indemnification by Lockpath. Lockpath shall indemnify, defend, and hold Client and its officers, shareholders, directors, employees, agents and affiliates (each, a “Client Indemnified Party”) harmless from and against any and all costs, liabilities, losses and expenses, including, but not limited to, reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party against any Client Indemnified Party relating to infringement of any United States Intellectual Property right by Client’s use of Keylight or Work Product; provided that, such cost, liability, loss, or expense was not caused, in whole or in part, by an unauthorized change, combination, modification or adaptation of Keylight or Work Product made by or at the direction of Client or by any third party. Lockpath may, at its option, secure at its own expense a right for Client to continue to use Keylight or Work Product, replace Keylight or Work Product with software of comparable type, quality and specifications that does not infringe a third party’s rights, or terminate this Agreement and refund a pro rata portion of any Fees prepaid by Client. Lockpath’s obligation to indemnify is conditioned upon Client giving Lockpath prompt notice of any charge of infringement, allowing Lockpath to control the defense and negotiations, and cooperating fully in resolving or defending such charges.
8. RELATIONSHIP OF THE PARTIES
8.1 Relationship of the Parties. The relationship of Lockpath and Client established by this Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any other relationship. Nothing in this Agreement shall be construed to give either Party the power to direct or control the daily activities of the other Party. Lockpath does not grant Client or any of Client’s Authorized Users or representatives the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of Lockpath, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of Lockpath, or to transfer, release, or waive any right, title, or interest of Lockpath. Lockpath shall have the right to determine the method, details, and means of providing Keylight and performing any Additional Services pursuant to this Agreement and any applicable Purchase Schedules. Lockpath shall have the sole right to designate the appropriate personnel, subcontractors or service partners necessary to provide Keylight or any Additional Services to be performed under a Purchase Schedule. Lockpath reserves the right to substitute personnel, subcontractors and service partners for any reason and in its own discretion.
8.2 Client Expenditures. Client acknowledges and agrees that any expenses it incurs in furtherance of this Agreement are voluntary in nature and are made with the knowledge that this Agreement may expire or be terminated as provided herein. Client shall make no claim against Lockpath, and Lockpath shall not be liable with respect to the recoupment of any expenditures or investment made by Client.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Intellectual Property Rights. As between the Parties, Lockpath has and retains sole ownership of all Intellectual Property comprising Keylight as well as any changes, modifications, improvements and enhancements regardless of whether they were made or developed by Lockpath at the request, suggestion or otherwise in conjunction with Client or its Authorized Users or made or developed by Client or its Authorized Users (collectively, the “Lockpath Intellectual Property”), with the sole exception of any Client Data. Lockpath grants to Client the limited right to use the Lockpath Intellectual Property pursuant to the terms and conditions of this Agreement. This Agreement does not affect any transfer of title or other interest in or to the Lockpath Intellectual Property or any other information and materials, and Client expressly and irrevocably assigns any right, title and interest Client may have to Lockpath. Client shall use its best efforts to ensure that all Authorized Users afforded access to the Lockpath Intellectual Property and any other information and materials produced or disclosed in connection therewith protect the same against unauthorized use, dissemination or disclosure.
9.2 Ownership of Work Product. Work Product, with the exception of any content or Client Data provided by Client, is owned by Lockpath and nothing in the Agreement operates to transfer ownership to Client. Conditioned upon full payment of all fees and expenses due, Lockpath grants to Client a non-exclusive, non-transferable, limited right to use copies of the Work Product for the Term. In the event Work Product includes customizations or developments related to Keylight, such customizations and development are provided on the same terms as Keylight is provided. Notwithstanding anything to the contrary, nothing in this Agreement is construed to assign or transfer any Intellectual Property rights in the proprietary tools, libraries, know-how, techniques and expertise (“Tools”) used by Lockpath to develop any Work Product, and to the extent such Tools are delivered with or as part of any Work Product, they are licensed, not assigned, to Client, on the same terms as the Work Product.
9.3 Confidential Information. As a result of Client’s access to Keylight, Client will have access to certain Confidential Information of Lockpath. Client shall maintain the secrecy of all such Confidential Information disclosed. Client shall not use, disclose or otherwise exploit any Confidential Information for any purpose not specifically authorized pursuant to this Agreement; provided that, Client may produce information in compliance with any law, court or administrative order. Client shall give Lockpath reasonable notice under the circumstances and to the extent permitted by law that such Confidential Information is being sought by a third party so as to afford Lockpath the opportunity to limit or prevent such disclosure. All files, lists, records, documents, documentation, end-user materials, equipment and computer programs that incorporate or refer to any Confidential Information shall be returned, deleted or destroyed by Client promptly upon termination or expiration of this Agreement.
9.4 Notification. Client shall promptly notify Lockpath of any determination, discovery, or notification that any person or entity is or may be misusing or infringing any Lockpath Intellectual Property.
9.5 Remedies. Client agrees that a breach of Sections 2, 9.1, 9.2 or 9.3 will cause Lockpath irreparable injury and damage. The Parties expressly agree that Lockpath shall be entitled to injunctive and other equitable relief to prevent such a breach, in addition to any other remedy to which Lockpath might be entitled. The Parties waive the posting of any bond or surety prior to the issuance of an injunction hereunder All remedies for such a breach shall be cumulative and the pursuit of one remedy shall not be deemed to exclude any other remedy with respect to the subject matter hereof.
10. GENERAL PROVISIONS
10.1 Entire Agreement; Amendment. This Agreement and any documents or other agreements specifically referenced in the Agreement and incorporated by this reference, constitutes the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, both oral and written, with respect to such subject matter. Except as otherwise provided in the Agreement, no amendment or modification of this Agreement is effective unless in writing and signed by the Parties. The terms and conditions of any inconsistent present or future Purchase Schedule(s) submitted by Client shall not alter the terms of this Agreement unless expressly consented to in writing by Lockpath
10.2 Counterparts; Electronic Agreement. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement may be agreed to and executed electronically. The Parties consent to the use of electronic methods of acknowledgement and electronic signatures and agree that their electronic signature as affixed to writings and documents relating to this Agreement is the legal equivalent of a manual signature on such documents. The Parties also agree that no certification authority or other third party verification is necessary to validate their electronic signature, and the lack of such certification or third party verification will not in any way affect the enforceability of an electronic signature or any resulting agreement between the Parties.
10.3 Severability. If any term or provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement remains in full force and effect, and such invalid, illegal or unenforceable term or provision is not a part of this Agreement.
10.4 Governing Law; Venue. This Agreement is governed by and construed, interpreted, and enforced in accordance with the laws of the State of Kansas, without reference to its conflicts or choice of law principles. The sole and exclusive jurisdiction and venue for any and all actions, suits or proceeding initiated by Client against Lockpath relating to the Agreement shall be in any trial court located in or having jurisdiction over Johnson County or Wyandotte County, Kansas and each of the Parties hereby irrevocably submits and consents to personal jurisdiction in the State of Kansas. The sole and exclusive jurisdiction and venue for any and all actions, suits or proceedings initiated by Lockpath against Client relating to the Agreement shall be in any trial court located in or having jurisdiction over the county and/or state in which Client’s office is located as set forth on the applicable Purchase Schedules and each of the Parties hereby irrevocably submits and consents to personal jurisdiction in such county and state.
10.5 Notices. Any notice required by the Agreement shall be delivered by hand, by courier service, or by certified mail (return receipt requested, postage prepaid) to the address provided by the Party to be notified. The Parties may change the referenced addresses and contact information by written notice in accordance with this Section. Notices are effective: (a) as of the date personally delivered if by hand or (b) for notices sent by certified mail, five (5) business days after the postmark date, or (c) upon receipt if sent by courier service such as Federal Express, U.P.S., or DHL. Notices also may be delivered by electronic means (including, without limitation, via email or posting via Keylight accounts) and notices so delivered are effective upon actual receipt of the electronic transmission.
10.6 Survival. The provisions of Sections 1, 2.2, 2.6, 2.7, 3.5, 3.7, 5.3, 5.4, 6.3, 7, 8, 9 and 10 shall survive the termination or expiration of this Agreement and shall remain in full force and effect.
10.7 Publicity. With prior approval, Client grants Lockpath the right to refer to the name, logo and/or brand images of Client in Lockpath’s customer listings, on its website, in a marketing brochure, user profile or a press release.
10.8 Waiver. Except as specifically provided in a written waiver signed by a duly authorized representative of the Party seeking enforcement, the failure to enforce or the waiver of any term of this Agreement does not constitute the waiver of such term at any time or in any circumstances and does not give rise to any restriction on or condition to the prompt and strict enforcement of this Agreement.
10.9 Assignment; Benefit. The Parties may not assign this Agreement without the prior written consent of the other Party; provided that either Party may assign this Agreement in connection with its sale to or merger with a third party or the sale or disposition of substantially all of its assets or business operations to a third party. This Agreement is binding upon and inures to the benefit of Lockpath and Client and their successors and permitted assigns, subject to the other provisions of this Section.
10.10 Force Majeure. Each Party to the Agreement are excused from any delay or failure in its performance hereunder, other than for payment of money, caused by any disruption or slow speed of the Internet, break-downs of security or introduction of computer viruses (and the like) by third parties, any government requirement, act of God, or any other cause beyond its reasonable control.
10.11 Third Parties. Nothing in this Agreement, express or implied, creates or confers upon any person or entity not a named Party to this Agreement any legal or equitable rights, remedies, liabilities or claims with respect to this Agreement, except as expressly provided in this Agreement.
10.12 Export Restrictions. Client and its Authorized Users shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using Keylight. Without limiting the generality of the above, Client represent that: (a) Client is not named on or acting on behalf of any person or entity named on any U.S. or other applicable government list of persons or entities prohibited from engaging in transactions; and (b) Client shall not access or use Keylight in violation of any U.S. or other applicable countries’ export embargo, prohibition or restriction. Client recognizes and acknowledges that some countries have restrictions on the use of encryption within their borders or the import or export of encryption even if only for temporary personal or business use, and Client further acknowledges and agrees that Client is ultimately responsible for complying with any and all government import, export and other applicable laws.