RiskOS End User Subscription Agreement
THIS RISK OS END USER 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”).
“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 Personnel” means those Authorized Users designated by Client to use and access the Managed Services. Client will cooperate with Lockpath in performing the Managed Services, including providing its Designated Personnel. Among other things, Client shall provide complete and accurate Client Data, shall designate Lockpath employees as Authorized Users, and will provide Lockpath other information as reasonably requested by Lockpath in order for Lockpath to provide Managed Services and perform its Managed Services obligations. Client’s failure to do so will relieve Lockpath of responsibility for any related deficiencies in its performance. Client and its Designated Personnel are solely responsible and liable for use of and reliance on Managed Services.
“Fees” means the fees, costs, expenses and any other charges for subscriptions to Keylight and for any Managed 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 SOFTWARE EVALUATION
Lockpath grants to Client and its Authorized Users, and Client hereby accepts, limited access and use Keylight solely for Client’s internal assessment and testing for the potential purchase of Keylight during the period of a software evaluation.
ALL CLIENT DATA ENTERED AND ANY CONFIGURATIONS MADE TO THE KEYLIGHT SYSTEM DURING A SOFTWARE EVALUATION WILL BE PERMANENTLY DELETED UNLESS CLIENT PURCHASES THE SAME KEYLIGHT SUBSCRIPTIONS MADE AVAILABLE DURING A SOFTWARE EVALUATION. ACCESS TO KEYLIGHT MAY BE DISABLED AFTER A CERTAIN PERIOD OF TIME. CLIENT MUST BE PREPARED FOR SUCH EVENT AT ALL TIMES AND MAY NOT RELY ON A SOFTWARE EVALUATION FOR ANY BUSINESS NEED OR PURPOSE.
NOTWITHSTANDING SECTION 7.1 WARRANTY, KEYLIGHT IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY DURING THE PERIOD OF A SOFTWARE EVALUATION.
3.0 KEYLIGHT SUBSCRIPTION
3.1 Provision of Subscription. Subject to the terms and conditions of this Agreement, Lockpath provides access to Keylight by Client and its Authorized Users for internal business purposes on a limited, 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 making Keylight 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.
3.2 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) accessing Keylight through any technology or means other than through the user account information provided to Client or 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; and (e) using Keylight for purposes other than for which it was provided or in excess of the rights granted in this Agreement.
3.3 Availability. After the Deploy Date and during Term as defined in any Purchase Schedule(s), Lockpath shall use commercially reasonable efforts to make Keylight available to Client on a 24 x 7 basis, excluding: (a) notified planned down time to perform routine maintenance during Lockpath’s maintenance windows commencing at 9:00 p.m. Central Time Friday and ending at 9:00 p.m. Central Time Sunday. Lockpath may reasonably modify such maintenance windows upon 14 days’ notice to Client; (b) down time as a result of problems, delays or slow speed with the public Internet infrastructure, problems with connectivity to the public Internet and/or Client’s network infrastructure; (c) introduction of computer virus and the like by Client’s third parties; and (d) any unavailability caused by circumstances beyond Lockpath’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Lockpath employees) or denial of service attacks.
3.4 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.
3.5 Protection of Client Data. Lockpath shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Lockpath shall not: (a) modify Client Data; (b) disclose Client Data except as compelled by law or as expressly permitted in writing by Client; and (c) access Client Data except to provide Managed Services and prevent or address service or technical problems, or at Client’s request in connection with Client support matters.
3.6 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 Managed Services to other parties.
4.0 PROVISION OF MANAGED SERVICES
4.1 Description of Managed Services. During the term pursuant to the applicable Purchase Schedule, Lockpath will provide Client with dedicated resources to perform managed services in relation to Client’s Keylight Subscription that includes the following (collectively, the “Managed Services”) : priority support dispatch and escalation; perform monthly reporting of services performed; facilitate strategy discussions during discovery period regarding Keylight functionality and designated user cases; input/import of Client Data (as provided by Client and its Authorized Users) into Keylight; generate reports, outputs, information and data in Keylight for Client’s Designated Personnel; serve as a Client administrator for the Keylight platform; and perform advanced configuration in the Keylight platform with regard to functionality and features.
4.2 Place of Performing Managed Services. Unless otherwise noted in the applicable Purchase Schedule, Lockpath will perform the Managed Services at Lockpath’s premises during Lockpath’s normal business hours or at any other time or location as mutually agreed to between the Parties.
4.3 Change Control. “Change” means any change to the Managed Services provided pursuant to an applicable Purchase Schedule that (i) would modify the nature or scope of the Managed Services, (ii) would alter the cost to Client, or (iii) is agreed by Client and Lockpath in writing to be a Change. From time to time during the Term, Client or Lockpath may propose Changes to the Managed Services. Any Change to Managed Services for an applicable Purchase Schedule shall be: (a) approved by both Lockpath and Client, (b) executed by an authorized representative of Lockpath and Client, and (c) memorialized in a change order (“Change Order”) or other written amendment that specifically identifies the portion of the applicable Purchase Schedule that is subject of the modification or amendment and the changed or new provision.
4.4 Managed Services Responsibilities of the Parties. Lockpath will provide qualities Lockpath resources to complete the tasks, relying upon the information furnished by the Client. Lockpath has not been engaged to provide an opinion with respect to the effectiveness of the Client controls or the degree of compliance with policies and procedures or applicable laws and/or regulations. Client will grant assigned Lockpath personnel with appropriate access to all necessary data, documentation and specifications for completion of the Managed Services. Client will be solely responsible and liable for all decisions or actions using Managed Services, including management decisions.
5.0 OBLIGATIONS OF THE PARTIES
5.1 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.
5.2 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 4.2. The receiving Party shall be responsible for any breach of this Section 5.2 (Confidentiality) caused by any of its employees, agents, and representatives.
5.3 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.
5.4 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 Managed 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.
5.5 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-transferable, 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.
5.6 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 Managed Services to Client under this Agreement.
5.7 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.
5.8 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.
5.9 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.
6.0 FEES AND PAYMENTS
6.1 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.
6.2 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 Managed Services (except for any taxes levied upon Lockpath’s income).
6.3 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 Managed 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.
7.0 TERM AND TERMINATION
7.1 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”).
7.2 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 6.3, or (ii) in the event Client or its Authorized Users violate any Lockpath Intellectual Property rights or otherwise breach the provisions of Sections 3.1, 3.2, 5.4, 5.5. or 9 of this Agreement.
7.3 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 Managed 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.
7.4 Return of Client Data. Upon request by Client made within 30 days after the effective date of termination of a purchased subscription, Lockpath will make available to Client for download a file of Client Data in SQL Server backup file (.bak) format along with attachments in their native format. After such 30-day period, Lockpath shall have no obligation to maintain or provide any of Client Data.
8.0 WARRANTY DISCLAIMERS, LIMITATION OF LIABILITY AND REMEDIES
8.1 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; (d) as provided by Lockpath to Client, Keylight does not infringe the intellectual property rights of any third party; (e) each of its employees, consultants and subcontractors, if any, that it uses to provide and perform Managed Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the Managed Services (b) the Managed 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 and accurate information and Client Data, access to resources, and participation. If through no fault or delay of Client the Managed Services do not conform to the foregoing warranty, and Client notifies Lockpath within sixty (60) days of Lockpath’s delivery of such allegedly non-conforming Managed Services, Client’s sole and exclusive remedy is to have Lockpath re-perform the non-conforming portions of the Managed Services.
8.2 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW AND EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, KEYLIGHT AND ANY MANAGED 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 MANAGED 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 MANAGED 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.
8.3 Limitation of Liability. EXCEPT FOR OBLIGATIONS UNDER SECTION 4.4 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 MANAGED 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.
8.4 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.
8.5 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.
8.6 Remedies. Client agrees that breach of sections 3.1, 3.2, 5.4 and 5.5 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.
9.1 Survival. The provisions of Sections 1, 3.6, 5.2, 5.3, 5.4, 5.5, 5.9, 6.3, 8, and 9 shall survive the termination or expiration of this Agreement and shall remain in full force and effect.
9.2 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.
9.3 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.
9.4 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.
9.5 Publicity. The Parties agree that Lockpath may issue press releases, case studies or other marketing collateral upon prior approval of Client.
9.6 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.
9.7 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.