LOCKPATH’S KEYLIGHT TERMS OF SERVICE (TOS)
Last Updated: 09.10.2018
This Keylight Terms of Service (“Terms of Service” or “TOS”) governs the use of and access to Keylight and Lockpath Intellectual Property. This TOS becomes effective upon a Client’s execution of the Keylight Application Subscription Agreement (the “Agreement”), your electronic acceptance of its terms or your access to or use of Keylight. BY ACCESSING KEYLIGHT OR INDICATING ACCEPTANCE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS TOS, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS. Capitalized terms used in this TOS have the meaning defined under the Agreement. For the purposes of this TOS, “Party” or “Parties” means, individually, you, Client or Lockpath, as the context requires, and, collectively, you, Client and Lockpath.
1.1. Access to Keylight.
Subject to the terms and conditions of the Agreement and this TOS, Lockpath provides you with access to Keylight on a limited, non-exclusive, non-transferable, non-sublicensable basis in executable form and subject to the user, version, module and quantity limitations identified and set forth in the Agreement. Unless otherwise set forth in a Purchase Schedule, such access will be provided via the Internet. You may use Keylight solely for Client’s internal purposes for the subscription term specified in the Agreement. Authorized Users may only be employees, independent contractors or vendors of Client designated and authorized by Client to access and use Keylight; therefore the foregoing rights terminate immediately upon your termination by Client or upon Client’s revocation of your authorization to use or access Keylight. You shall not permit access to or use of Keylight by persons who are not Authorized Users. User accounts are assigned individually, and you may not share your account access information concurrently or otherwise with other persons. You have the right to use and reasonably reproduce any documentation provided by Lockpath in order to satisfy Client’s own internal requirements provided that such reproduction is solely for the use of Client and shall contain Lockpath’s and its licensors’ proprietary and other notices at all times.
Under no circumstances may you or Client, as applicable, 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 TOS, you and Client shall not unbundle, sublicense, assign, transfer, display, distribute, rent, or lease access to Keylight or any portion thereof to any third party. You and Client may not access or utilize Keylight for competitive purposes or to develop applications or services competitive with Keylight. All rights not specifically granted to you or Client in the Agreement or this TOS are reserved by Lockpath.
2. OBLIGATIONS OF THE PARTIES
2.1. General Technological Obligations.
Unless otherwise set forth in a Purchase Schedule, you or Client, as applicable, 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, PCs, 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. You or Client shall use Secure Socket Layer (SSL) protocols or other secure protocols approved by Lockpath and shall follow logon procedures for services that support such protocols. You or 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.
2.2. Authorized Users; Passwords.
You are responsible for ensuring that only you access and use Keylight using your account information, that you have been trained in proper use of Keylight, and that you do not make unauthorized use of Keylight. 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 you 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 in a manner that disrupts use of Keylight by others or attempting to interfere with, disrupt or gain unauthorized access to Keylight, Lockpath’s computer network or any other computer network; (f) 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 the Agreement or this TOS; (g) 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 (h) 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. You are responsible for the security and confidentiality of any usernames or passwords granted to you to access Keylight, and shall not disclose such usernames and passwords to other parties. You are responsible for any authorized or unauthorized access to or use of Keylight using such usernames and passwords, and any actions taken thereunder. You shall use your best efforts to ensure that Lockpath’s Confidential Information and the Lockpath Intellectual Property are kept secure and protected from unauthorized access or disclosure. You must provide and maintain accurate and complete registration information with Lockpath, including, without limitation, name, email address and other contact information.
This TOS remains in effect until the earlier of: (a) termination or expiration of the Agreement, or (b) termination pursuant to Section 3.2 below.
3.2. Termination With Cause.
Lockpath may immediately suspend or terminate this TOS and your access to Keylight upon written notice (a) as set forth in the Agreement, (b) in the event you violate any Lockpath Intellectual Property rights or otherwise breach the provisions of the TOS, or (c) in the event Lockpath determines in its reasonable discretion that you are a repeat infringer of the Intellectual Property rights of third parties.
3.3. Consequences Upon Termination.
Upon the termination or expiration of this TOS for any reason, (a) your right to access and use Keylight immediately and automatically terminates, you shall cease all access to and use of Keylight, and you shall not thereafter use, advertise, or display any Lockpath Intellectual Property, (b) you shall immediately return to Lockpath all Lockpath Intellectual Property and any other property, equipment and materials provided to you by Lockpath (whether modified or unmodified), or immediately destroy such property at Lockpath’s sole option, and (c) you shall certify your compliance with this section to Lockpath in writing.
4. WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY
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. 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 YOU 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, YOU 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 YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU AND CLIENT ARE SOLELY RESPONSIBLE FOR ENSURING CLIENT’S COMPLIANCE THEREWITH.
4.2. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL LOCKPATH BE LIABLE TO YOU 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. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR LOCKPATH TO PROVIDE AND FOR YOU TO OBTAIN ACCESS TO KEYLIGHT ON BEHALF OF CLIENT FOR THE SPECIFIED FEES.
4.3. Indemnification by You.
You shall indemnify, defend and hold any 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 you of any of your representations, warranties, covenants or obligations hereunder, (b) your use, misuse or failure to use Keylight, (c) any Client Data submitted, uploaded or otherwise entered by you in Keylight, or (d) infringement or misappropriation of any Lockpath Intellectual Property or the Intellectual Property rights of any third party by you; provided that, such cost, liability, loss or expense was not caused solely by the gross negligence or intentional misconduct of Lockpath.
5. RELATIONSHIP OF THE PARTIES
5.1. Relationship of the Parties.
The relationship of Lockpath, Client and you established by the Agreement and this TOS is solely that of independent contractors, and nothing in this Agreement creates or imply any other relationship. Nothing in the Agreement and this TOS gives either Party the power to direct or control the daily activities of the other Party. Lockpath does not grant you, Client or any of Client’s other 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 has the right to determine the method, details, and means of providing Keylight and performing any Additional Services pursuant to the Agreement and this TOS. Lockpath has the sole right to designate the appropriate personnel, subcontractors or service partners necessary to provide Keylight or any Additional Services to be performed under any applicable Purchase Schedule(s). Lockpath reserves the right to substitute personnel, subcontractors and service partners for any reason and in its own discretion.
You and Client acknowledge and agree that any expenses you and Client incur in furtherance of the Agreement and this TOS are voluntary in nature and are made with the knowledge that the Agreement and this TOS may expire or be terminated. You and Client shall make no claim against Lockpath, and Lockpath is not liable with respect to the recoupment of any expenditures or investment made by you or Client.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. 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 you, Client or its users or made or developed by you or Client (collectively, the “Lockpath Intellectual Property”), with the sole exception of any Client Data. Lockpath grants to you the limited right to use the Lockpath Intellectual Property pursuant to the terms and conditions of this TOS and the Agreement. This TOS and the Agreement do not affect any transfer of title or other interest in or to the Lockpath Intellectual Property or any other information and materials, and you expressly and irrevocably assign any right, title and interest you 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.
6.2. 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. 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 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.
6.3. Confidential Information.
As a result of your access to Keylight, you will have access to certain Confidential Information of Lockpath. You shall maintain the secrecy of all such Confidential Information disclosed to you. You shall not use, disclose or otherwise exploit any Confidential Information for any purpose not specifically authorized pursuant to this TOS or the Agreement; provided that, you may produce information in compliance with any law, court or administrative order. You 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 you promptly upon termination or expiration of this TOS or the Agreement.
You 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.
You agree that a breach of Sections 1, 2, 6.1, or 6.2 of this TOS will 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. In the event a court refuses to honor the waiver of bond hereunder, the Parties expressly agree to a bond in the amount of $100.00. All remedies for such a breach are cumulative and the pursuit of one remedy does not exclude any other remedy.
7. GENERAL PROVISIONS
7.1. Entire Agreement; Amendment.
The Agreement, including this TOS and any documents or other agreements specifically referenced in the Agreement or this TOS and incorporated by this reference, constitutes the entire agreement of the Parties with respect to the subject matter of the Agreement and this TOS and supersedes all prior agreements, both oral and written, with respect to such subject matter. Except as otherwise provided in the Agreement or this TOS, no amendment or modification of the Agreement, this TOS or any Purchase Schedule(s) 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 you or Client shall not alter the terms of this Agreement unless expressly consented to in writing by Lockpath. No use of trade or other regular practice or method of dealing between the Parties modifies, interprets, supplements or alters in any manner the terms of the Agreement or this TOS.
7.2. Counterparts; Electronic Agreement.
The 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. The Agreement and this TOS 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 the Agreement and this TOS 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.
If any term or provision of the Agreement or this TOS is held to be invalid, illegal or unenforceable, the remaining terms and provisions of the Agreement or this TOS remains in full force and effect, and such invalid, illegal or unenforceable term or provision is not a part of the Agreement or this TOS.
7.4. Governing Law; Venue.
The Agreement and this TOS are 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 you or Client against Lockpath relating to the Agreement or this TOS 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 you or Client relating to the Agreement or this TOS 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.
Any notice required by the Agreement or this TOS 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.
The provisions of Sections 1, 3.3, 4, 6 and 7 of this TOS shall survive the termination or expiration of this TOS and remain in full force and effect.
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 or this TOS 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 or this TOS.
7.8. Assignment; Benefit.
The Parties may not assign the Agreement or this TOS without the prior written consent of the other Party; provided that either Party may assign the Agreement or this TOS 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 and this TOS 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.
7.9. Force Majeure.
Each Party to the Agreement and this TOS 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.
7.10. Third Parties.
Nothing in the Agreement or this TOS, express or implied, creates or confers upon any person or entity not a named Party to the Agreement or this TOS any legal or equitable rights, remedies, liabilities or claims with respect to the Agreement or this TOS, except as expressly provided in the Agreement or this TOS.
7.11. Export Restrictions.
You, Client and its other 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, you and Client represent that (a) you and Client are 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) you and Client shall not access or use Keylight in violation of any U.S. or other applicable countries’ export embargo, prohibition or restriction. You and 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 you further acknowledge and agree that you and Client are ultimately responsible for complying with any and all government import, export and other applicable laws.