End User On-Premise Subscription Agreement
THIS END USER ON-PREMISE SUBSCRIPTION 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 the applicable Purchase Schedule(s) (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 application subscription 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 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 to be provided by Lockpath identified in any Purchase Schedule(s), other than the services provided with a Keylight subscription.
“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 Keylight subscriptions 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 access and use may be reassigned to new Authorized Users replacing former individuals who no longer require a subscription.
“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 in whatever form transmitted concerning the business, technology, products, services, internal structure and strategies of the disclosing Party, specifically including, without limitation, financial information, personal information, customer information, prospective customers, software documentation and content, end-user materials, infrastructure, security, pricing, proposals, design, trade secrets, ideas, formulae, data, code, know-how, methodologies, inventions, practices, processes, procedures, vendors, concepts, future plans, and (b) any other information clearly labeled by the disclosing Party in writing as “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. The obligations related to Confidential Information will continue from the Effective Date through the termination or expiration of this Agreement and for a period of five (5) years after the termination or expiration of this Agreement or such longer period as any of the Confidential Information may be protected by applicable state or federal law.
“Designated Location” shall mean the physical location(s), approved by Client and Lockpath, for the deployment of Keylight installed on Client’s devices.
“Fees” means the fees, costs, expenses and any other charges for subscriptions to Keylight and for any Additional Services as set forth in the applicable Purchase Schedule(s).
“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 copyrightability, 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 any Purchase Schedule(s), including any changes, modifications, improvements and enhancements provided by Lockpath pursuant to this Agreement.
“Purchase Schedule” means any addenda, exhibits, order confirmations, order forms, proposals, purchase schedule(s), or quotes attached to and executed pursuant to this Agreement, to which Client may order subscriptions to Keylight and Additional Services.
“Work Product” means all deliverables and related Intellectual Property delivered by Lockpath to Client pursuant to the applicable Purchase Schedule(s).
2.0 KEYLIGHT SUBSCRIPTION
2.1 Provision of Subscription. Subject to the terms and conditions of this Agreement, Lockpath provides the installation guide and Keylight application files for access to Keylight by Client and its Authorized Users for internal business purposes at Client Designated Location on a limited, revocable, non-exclusive, non-transferable, non-sub licensable basis in executable form and subject to the user, version, module and quantity limitations identified and set forth in the Agreement and Purchase Schedules. Lockpath shall make the subscriptions available to the Client and its Authorized Users pursuant to this Agreement and relevant Purchase Schedule(s) during the Initial Term and any Renewal Terms. Installation and acceptance has occurred upon Lockpath providing Keylight installation guide and application files available for access and use by Client (“Deploy Date”). Client shall not permit access to or use of Keylight by persons who are not Authorized Users. Client is solely responsible for ensuring that all Authorized Users access and use Keylight in accordance to the terms of this Agreement. Client has the right to use and reasonably reproduce any documentation provided by Lockpath in order to satisfy Client’s own internal requirements and per the terms of this Agreement. Reproduction of any documentation is solely for use of Client and shall contain Lockpath’s and its licensors’ proprietary and other notices at all times. Lockpath may update the functionality and user interface of Keylight from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve Keylight and Clients’ use of Keylight. 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 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. During applicable subscriptions terms include Keylight includes future versions, modifications, enhancements, and releases (each an “Upgrade”) made by Lockpath to Keylight.
2.2 Backup Copy. 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. Any backup copy shall be accounted for immediately upon Lockpath’s request. For the avoidance of doubt, Client is not provided a sandbox, test or development copy unless purchased.
2.3 Unauthorized Use of Subscription: Unauthorized use of Keylight includes, without limitation, (a) attempts to gain access to other user accounts or data of other Lockpath clients; (b) use of Keylight to disseminate, store or transmit viruses, Trojan horses or any other malicious code or programs; (c) entering into or transmitting any information using Keylight that is unlawful, false, offensive, defamatory or infringes the rights of any person; and (d) using Keylight for purposes other than for which it was provided or in excess of the rights granted in this Agreement.
2.4 Support Services. 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.
2.5 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 support for problems in the operation or performance of Keylight to the extent caused by any of the following: (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; (failure of Client to install any Updates or Upgrades provided by Lockpath; or (use of Keylight not in accordance with the Agreement.
2.6 Protection of Client Data. Client is and remains responsible for all administrative, physical, and technical safeguards, and laws, rules and regulations for protection of the security, confidentiality, privacy and integrity of Client Data.
2.7 Access and Site Preparation. Client shall provide Lockpath with reasonable access at the Designated Location 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 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.
2.8 Audit. Lockpath may conduct audits to ensure Client and its users are in compliance with this Agreement. Such audits will be conducted during normal business hours upon reasonable advance 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 subscription 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 cost of conducting the audit.
2.9 Reserved Rights. All rights not specifically granted to Client in this Agreement are reserved by Lockpath. Nothing shall prevent Lockpath or its licensors from promoting, providing, or selling subscriptions for the use of or access to Keylight or providing any Additional Services to other parties.
3.0 OBLIGATIONS OF THE PARTIES
3.1 Regulatory Compliance; Suitability. Client is solely responsible for ensuring that it’s 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 is solely responsible for determining the suitability of Keylight for its operations and whether Keylight will achieve the results Client desires.
3.2 Obligations of Confidential Information. The receiving Party shall: (a) protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than reasonable efforts, to prevent disclosure to outside parties; (b) not use the disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, agents and representatives who need to know the Confidential Information to assist the receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement and who have agreed to obligations of confidentiality substantially similar to those in this Section 3.2. The receiving Party shall be responsible for any breach of this Section 3.2 (Confidentiality) caused by any of its employees, agents, and representatives.
3.3 Required Disclosure. If a receiving Party receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the disclosing Party, it shall provide prompt notice to the disclosing Party of such receipt, and provide reasonable assistance, at the disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. The receiving Party shall thereafter be entitled to comply with such subpoena or other process to that extent required by Law.
3.4 Lockpath Intellectual Property. Under no circumstances may Client or its Authorized Users 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. Client and its Authorized Users may not access or utilize Keylight for competitive purposes or to develop applications or services competitive with Keylight. As between the Parties, Lockpath has and retains sole ownership of all Intellectual Property comprising Keylight and Additional Services 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 (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 it may have to Lockpath. Client shall use its best efforts to ensure that all permitted persons 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.
3.5 Ownership of Work Product. Except as otherwise expressly set forth in a Purchase Schedule, all Work Product, with the exception of any content or Client Data provided by Client, is owned by Lockpath, and nothing in this Agreement operates to transfer ownership to Client. Client expressly and irrevocably assigns to Lockpath any right, title and interest that Client may have or gain to the Work Product. Upon full payment of all Fees due, Lockpath grants to Client a non-exclusive, non-transferrable, limited right to use copies of the Work Product for the Term. In the event the Work Product includes customizations or developments related to Keylight, such customizations and developments are provided on the same terms as Keylight is provided under this Agreement.
3.6 Client Data. Keylight allows Client to upload Client Data into the Keylight system. 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 all 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. By uploading Client Data to Keylight, Client grants Lockpath a worldwide, non-exclusive, royalty-free, license to use, reproduce, distribute, modify, edit, adapt, publish, translate or incorporate the Client Data strictly for purposes of providing Keylight and Additional Services to Client under this Agreement.
3.7 Inaccurate Client Data. All Client Data originates from Client and its Authorized Users, and as such, is beyond the control of Lockpath. Lockpath does not monitor the specific content or accuracy of the Client Data. Client is solely responsible for the accuracy, content, currency, completeness and delivery of the Client Data uploaded by its Authorized Users.
3.8 Client Technological Obligations. Client and its Authorized Users will have the sole responsibility for: (a) acquiring, installing and maintaining the technology environment, software and equipment necessary to properly access and utilize Keylight, including, without limitation, PC’s , operating systems, browser software, servers, internet access, LANs and WANs; (b) any communications or other costs incurred in operating, using, updating, maintaining, supporting and servicing Keylight; and (c) any expenses relating to the foregoing. Client shall establish adequate operational back-up systems and procedures to ensure recovery and continuity of its systems and operations in the event of a failure of Keylight.
3.9 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.
4.0 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.
5.0 FEES AND PAYMENTS
5.1 Fees. Client shall pay Lockpath Fees in the amount set forth in the applicable Purchase Schedule(s). Fees are based on subscriptions purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable and due within 30 days of invoice date. Client may add additional subscriptions at any time during the Initial Term and any Renewal Terms with additional Purchase Schedule(s). Fees for additional subscriptions are adjusted to be coterminous with the relevant Initial Term or Renewal Term. Subscription fees are based on monthly periods that begin on the subscription Deploy Date and each monthly anniversary thereof; therefore, fees for subscriptions 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. Commencing with the second Renewal Term, Lockpath may increase subscription fees up to 10%, provided Client is provided at least 60 days prior written notice.
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 subscription 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 payment terms, Lockpath may declare Client in breach, suspend further access to 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.
6.0 TERM AND 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 4.3, or (ii) in the event Client or its Authorized Users violate any Lockpath Intellectual Property rights or otherwise breach the provisions of Sections 2.1, 2.2, 3.4, 3.5.or 7 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 and Additional Services will immediately and automatically terminate, Client and its Authorized Users will cease all access to and use of Keylight, and Client will not use, advertise, or display any Lockpath Intellectual Property; (b) Client will 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 will certify its compliance with this section to Lockpath in writing if asked to do so by Lockpath. In the event this Agreement is terminated for any reason other than Lockpath’s breach of the Agreement, Lockpath is entitled to retain all prepaid amounts and Fees. Lockpath may retain any Client Data collected using Keylight for any minimum period required by applicable law and to the extent incorporated into Lockpath’s disaster recovery or backup systems. Lockpath may delete the Client Data in accordance with Lockpath’s data retention policy as then in effect and as modified from time to time.
7.0 WARRANTY DISCLAIMERS, LIMITATION OF LIABILITY AND REMEDIES
7.1 Warranty. Lockpath represents and warrants that: (a) it has full power and authority to execute and deliver this Agreement; (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, 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 OBLIGATIONS UNDER SECTION 3.4 LOCKPATH INTELLECTUAL PROPERTY,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) Client’s or its Authorized Users’ use, misuse or failure to use Keylight or Work Product, (b) infringement or misappropriation of any Lockpath Intellectual Property or the Intellectual Property rights of any third party by Client or its Authorized Users, or (c) any Client Data uploaded by Client or its Authorized Users into 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.
7.6 Remedies. Client agrees that breach of sections 2.1, 2.3, 3.4 and 3.5 may cause Lockpath irreparable injury and damage. The Parties expressly agree that Lockpath is entitled to seek 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 are cumulative and the pursuit of one remedy does not exclude any other remedy.
8.1 Survival. The provisions of Sections 1, 2.6, 3.2, 3.3, 3.4, 3.5, 3.9, 4.3, 6, and 7 shall survive the termination or expiration of this Agreement and shall remain in full force and effect.
8.2 Notice. 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 addresses of the Parties noted on the applicable Purchase Orders. 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.
8.3 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 this 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 this 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 cover page of the Agreement and each of the Parties hereby irrevocably submits and consents to personal jurisdiction in such county and state.
8.4 Assignment. The Parties may not assign the Agreement without prior written consent of the other Party; provided that either Party may assign the 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. The 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.
8.5 Publicity. The Parties agree that Lockpath may issue press releases, case studies or other marketing collateral upon prior approval of Client.
8.6 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 the 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 the Agreement.
8.7 Export. 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 represents 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 recognize and acknowledge 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 further acknowledges and agrees that Client is ultimately responsible for complying with any and all government import, export and other applicable laws.