This KensoBI Agreement, including all referenced and included Service Orders (the “Agreement”), is between Kenso Software, LLC (“Kenso Software”) and the purchaser or user of Kenso Software software and services who accepts the terms of this Agreement (“Client”). The effective date of this Agreement (“Effective Date”) is the date that Client signs or accepts this Agreement or the date mutually agreed upon by Client and Kenso Software.
This Agreement establishes a framework that will enable Kenso Software to provide Software and Services to Client. “Software” means KensoBI and other software programs branded by Kenso Software, its Affiliates and/or third parties including all modifications, additions or further enhancements delivered by Kenso Software. The specific services (the “Services”) and/or Software that Kenso Software will provide to Client will be described in an Order Form, signed by the parties or otherwise accepted by Kenso Software, which may consist of (a) one or more mutually agreed order forms, statements of work, work orders or similar transaction documents, or (b) an order placed by Client through Kenso Software’s website. The parties agree that the terms of this Agreement will govern all purchases and use by Client of Software and Services unless otherwise agreed by the parties in writing.
If Kenso Software personnel are working on Client’s premises (a) Client will provide a safe and secure working environment for Kenso Software personnel, and (b) Kenso Software will comply with all reasonable workplace safety and security standards and policies, applicable to Client’s employees, of which Kenso Software is notified in writing by Client in advance.
Changes to the Services will be made only through a written change order signed by both parties. In the event that (a) Client fails to timely fulfill its obligations under an Order Form, and this failure adversely impacts the provision of Services, or (b) events outside of either party’s reasonable control cause a delay in or otherwise affect Kenso Software’s ability to perform its obligations under an Order Form, Kenso Software will be entitled to appropriate relief, including adjusting the timing of its delivery of applicable Services.
Client may provide Kenso Software access to Client information, systems, and software (“Client Information”), and resources such as workspace, network access, and telephone connections as reasonably required by Kenso Software in order to provide the Services. Client understands and agrees that (a) the completeness, accuracy of, and extent of access to, any Client Information provided to Kenso Software may affect Kenso Software’s ability to provide Services, and (b) if reasonable access to Client Information is not provided, Kenso Software will be relieved from providing any Services dependent upon such access. Client will obtain any third party consents necessary to grant Kenso Software access to the Client Information that is subject to the proprietary rights of, or controlled by, any third party, or which is subject to any other form of restriction upon disclosure.
Fees for the Services (the “Fees”) will be identified in an Order Form and are (a) due upon Kenso Software’s acceptance of an Order Form or, for renewal of Services, at the start of the renewal term, and (b) payable in accordance with Section 3.2. Fees are stated in United States Dollars, must be paid in United States Dollars, and, unless otherwise specified in writing, do not include out-of- pocket expenses or shipping costs. Client will reimburse Kenso Software for all reasonable expenses Kenso Software incurs in connection with the performance of Services.
3.2.1 If Client desires credit terms with respect to the payment of Fees, Client will reasonably cooperate with Kenso Software in establishing and periodically re-confirming Client’s credit-worthiness. If credit terms are provided to Client, Kenso Software will invoice Client for the Fees upon Kenso Software’s acceptance of the applicable Order Form and upon acceptance of any future order. Except as otherwise provided in this Agreement, any and all payments made by Client pursuant to this Agreement are non- refundable. Kenso Software reserves the right to suspend or cancel performance of all or part of the Services and/or change its credit terms if actual payment has not been received within 10 days of the agreed upon due date.
3.2.2 If Client is paying by credit card, Client (a) authorizes Kenso Software to charge Client’s credit card for the Services and for the amount due at the time of renewal of Subscription Services, and (b) agrees to provide updated credit card information to Kenso Software for renewal purposes.
All Fees are exclusive of Taxes. Client will pay Kenso Software an amount equal to any Taxes arising from or relating to this Agreement or an applicable Order Form which are paid by or are payable by Kenso Software. “Taxes” means any form of sales, use, value added or other form of taxation and any fines, penalties, surcharges or interest, but excluding any taxes based solely on the net income of Kenso Software. If Client is required to withhold or deduct any portion of the payments due to Kenso Software, Client will increase the sum payable to Kenso Software by the amount necessary so that Kenso Software receives an amount equal to the sum it would have received had Client made no withholdings or deductions.
KensoBI (and its licensors, where applicable) owns all right, title and interest (including all related Intellectual Property Rights) in and to the Software. “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
Subject to the terms and conditions of the Agreement, Kenso Software grants to Client a non-exclusive, non-transferable, revocable right and license to access and use the Software during the Term. All rights relating to the Software that are not expressly granted to Client hereunder are expressly reserved by Kenso Software.
Client must not: (i) sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party any of the Software in any way, except with KensoBI’s prior written consent in each instance; (ii) modify or make derivative works based upon any of the Software, or otherwise remove, decompile, disassemble or reverse engineer any software; or (iii) reverse engineer or use any of the Software to: (A) build a competitive product or service; (B) build a product or service using similar ideas, features, functions or graphics to any portion of the Software; (C) copy, print, republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Software; (D) create any compilations or derivative works of any portion of the Software; or (E) copy or resell any marketing, training or other materials such as slides, advice, guidance, or frameworks provided by Kenso Software.
Any feedback, ideas, suggestions, comments, feature requests, or other input (collectively, “Feedback”) provided by Client about the Software shall be the exclusive property of KensoBI, and KensoBI will be free to use, disclose, reproduce, or otherwise exploit such Feedback without restriction. KensoBI shall be the owner of any improvements, modification, derivative works, corrections, or upgrades (collectively, “Improvements”) to the Software arising in connection with this Agreement, and Client hereby assigns KensoBI any right, title and interest it may have in and to such Improvements.
Client will notify Kenso Software promptly if the actual number of Users of Software or Services utilized by Client exceeds the number of Users for which Client has paid the applicable Fees. In its notice, Client will include the number of additional Users and the date(s) on which such Users were first utilized. Kenso Software will invoice Client for the applicable Services for such Users and Client will pay for such Services no later than thirty (30) days from the date of the invoice.
The term of this Agreement will begin on the Effective Date and will terminate at the expiration of ninety (90) days following written notice of termination given by one party to the other. Termination of this Agreement will not operate to terminate any Order Form and the terms and conditions of this Agreement will continue in full force and effect to the extent necessary to give effect to any Order Form in effect at the time of termination of this Agreement and until such time as the applicable Order Form expires or is terminated in accordance with Section 6.2 below.
6.2.1 The term of an Order Form begins on the date the Order Form is executed (“Order Form Effective Date”) and continues for the term stated in the Order Form.
6.2.2 If Client or Kenso Software materially breaches the terms of an Order Form, and such breach is not cured within thirty (30) days after written notice of the breach is given to the breaching party, then the other party may, by giving written notice of termination to the breaching party, terminate the applicable Order Form and/or this Agreement; provided, however, that no cure period will be required for a breach of Section 9 of this Agreement. The termination of an individual Order Form will not terminate any other Order Form or this Agreement unless otherwise specified in the written notice of termination. Without prejudice to any other right or remedy of Kenso Software, in the event either party terminates an Order Form, Client will pay Kenso Software for all Services provided up to the effective date of termination.
If this Agreement or an Order Form is terminated for any reason, Sections 3, 4, 6.3, 7, 8, 9, 10.2, 13.1, and 13.5-13.12 of this Agreement (as the same are incorporated into each Order Form) will survive such termination.
7.1 Nothing in this Agreement will preclude or limit Kenso Software from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to those that might be delivered to Client. The terms of confidentiality in Section 9 will not prohibit or restrict either party’s right to develop, use or market products or services similar to or competitive with the other party; provided, however, that neither party is relieved of its obligations under this Agreement.
FOR ALL EVENTS AND CIRCUMSTANCES, KENSO SOFTWARE AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ALL ORDER FORMS, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS RECEIVED BY KENSO SOFTWARE DURING TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, WITH RESPECT TO THE PARTICULAR ITEMS (WHETHER SOFTWARE, SERVICES OR OTHERWISE) GIVING RISE TO LIABILITY UNDER THE MOST APPLICABLE ORDERING DOCUMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT OR AN ORDER FORM, IN NO EVENT WILL KENSO SOFTWARE OR ITS AFFILIATES BE LIABLE TO CLIENT OR ITS AFFILIATES FOR DAMAGES OTHER THAN DIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION: ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING IN TORT, CONTRACT, OR OTHERWISE; OR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, REGULATORY NON-COMPLIANCE, DELAYS, LOSS OF DATA, LOST PROFITS, LOST SAVINGS, INTERRUPTION OF SERVICE, LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF KENSO SOFTWARE OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIABILITY FOR THESE DAMAGES WILL BE LIMITED AND EXCLUDED EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
During the term of this Agreement, both parties agree that (i) Confidential Information will be used only in accordance with the terms and conditions of this Agreement; (ii) each will use the same degree of care it utilizes to protect its own confidential information, but in no event less than reasonable care; and (iii) the Confidential Information may be disclosed only to employees, agents and contractors with a need to know, and to its auditors and legal counsel, in each case, who are under a written obligation to keep such information confidential using standards of confidentiality not less restrictive than those required by this Agreement. Both parties agree that obligations of confidentiality will exist for a period of two (2) years following initial disclosure of the particular Confidential Information. “Confidential Information” means all information disclosed by either Kenso Software or Client (“Disclosing Party”) to the other party (“Recipient”) during the term of this Agreement that is either (i) marked confidential or (ii) disclosed orally and described as confidential at the time of disclosure and subsequently set forth in writing, marked confidential, and sent to the Recipient within thirty (30) days following the oral disclosure.
Confidential Information will not include information which: (i) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Disclosing Party without obligation of confidentiality; (ii) is known to the Recipient at the time of disclosure by the Disclosing Party; (iii) is independently developed by the Recipient without use of the Confidential Information; (iv) becomes lawfully known or available to the Recipient without restriction from a source having the lawful right to disclose the information; (v) is generally known or easily ascertainable by parties of ordinary skill in the business of the Recipient; or (vi) is software code in either object code or source code form that is licensed under an open source license. The Recipient will not be prohibited from complying with disclosure mandated by applicable law if, where reasonably practicable and without breaching any legal or regulatory requirement, it gives the Disclosing Party advance notice of the disclosure requirement.
Client consents to the identification of Client as a customer of Kenso Software on Kenso Software’ websites, and in other marketing materials distributed by Kenso Software (which may include emails and other web and print materials) (collectively, “Kenso Software Marketing Materials”). In connection with such activity, Kenso Software may also display Client’s trademarks, service marks, and/or logos in Kenso Software Marketing Materials. The foregoing shall be deemed a worldwide, nonexclusive and (except as set forth below) irrevocable license to the use of Client’s name, trademarks, service marks, and logos for this purpose. The Parties agree that such license and consent shall terminate upon termination of Client’s subscription to all Services.
Client also agrees to be referenced in press releases and case studies prepared by Kenso Software (collectively “Kenso Software Press Materials”). In connection with such activity, Kenso Software may also use and display Client’s trademarks, service marks, and/or logos in Kenso Software Press Materials. The foregoing shall be deemed a worldwide, nonexclusive and (except as set forth below) irrevocable license to the use of Client’s name, trademarks, service marks, and logos for this purpose. The Parties agree that such license and consent shall terminate upon termination of Client’s subscription to all Services.
Kenso Software represents and warrants that: (a) the Services will be performed in a professional and workmanlike manner by qualified personnel; (b) it has the authority to enter into this Agreement with Client; and (c) to Kenso Software’s knowledge, Kenso Software branded Software does not, at the time of delivery to Client, include malicious or hidden mechanisms or code for the purpose of damaging or corrupting the Software.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 10.1 OR BY A THIRD PARTY VENDOR DIRECTLY TO CLIENT UNDER A SEPARATE AGREEMENT, THE SERVICES, SOFTWARE AND ANY HARDWARE ARE PROVIDED BY KENSO SOFTWARE “AS IS” AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. KENSO SOFTWARE DOES NOT GUARANTEE OR WARRANT THAT THE USE OF THE SERVICES, SOFTWARE OR HARDWARE WILL BE UNINTERRUPTED, COMPLY WITH REGULATORY REQUIREMENTS, BE ERROR FREE OR THAT KENSO SOFTWARE WILL CORRECT ALL SOFTWARE ERRORS. FOR THE BREACH OF THE WARRANTIES SET FORTH IN SECTION 10.1, CLIENT’S EXCLUSIVE REMEDY, AND KENSO SOFTWARE’S ENTIRE LIABILITY, WILL BE THE REPERFORMANCE OF DEFICIENT SERVICES, OR IF KENSO SOFTWARE CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, CLIENT MAY TERMINATE THE RELEVANT SERVICES AND RECEIVE A PRO RATA REFUND OF THE FEES PAID FOR THE DEFICIENT SERVICES AS OF THE EFFECTIVE DATE OF TERMINATION. Without limiting the generality of the foregoing disclaimer, the Software, Services and any hardware provided are not specifically designed, manufactured or intended for use in (a) the planning, construction, maintenance, control, or direct operation of nuclear facilities, (b) aircraft navigation, control or communication systems, weapons systems, (c) direct life support systems or (d) any regulated industry. Client agrees that it is solely responsible for the results obtained from the use of the Software and Services.
12.1 The validity, interpretation and enforcement of this Agreement will be governed by and construed in accordance with the laws of the United States and of the State of North Carolina without giving effect to the conflicts of laws provisions thereof or the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of or relating to this Agreement will be submitted to the exclusive jurisdiction of the state or federal courts of competent jurisdiction located in Charlotte, North Carolina, and each party irrevocably consents to such personal jurisdiction and waives all objections to this venue.
Notices must be in English, in writing, and will be deemed given when delivered by hand or five (5) days after being sent using a method that provides for positive confirmation of delivery to: Kenso Software, LLC., Attention: General Counsel, 5015 Helena Park Ln, Matthews, North Carolina, 28105.
This Agreement is binding on the parties to this Agreement, and other than the rights conferred on Business Partners in Sections 5.1 and 6.2.2, nothing in this Agreement or in any Order Form grants any other person or entity any right, benefit or remedy of any nature whatsoever, except for the parties’ Affiliates as expressly provided in this Agreement. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld, conditioned or delayed; provided, however, either party may, upon written notice and without the prior approval of the other party, (a) assign this Agreement to an Affiliate as long as the Affiliate has sufficient credit to satisfy its obligations under this Agreement and the scope of Service is not affected; and (b) assign this Agreement pursuant to a merger or a sale of all or substantially all of such party’s assets or stock.
Kenso Software is an independent contractor and nothing in this Agreement or related to Kenso Software’s performance of any Order Form will be construed to create an employment or agency relationship between Client (or any Client personnel) and Kenso Software (or any Kenso Software personnel). Each party will be solely responsible for supervision, direction, control and payment of its personnel, including applicable taxes, deductions, other payments and benefits.
Neither party will be liable for nonperformance or delays caused by acts of God, wars, riots, strikes, fires, floods, hurricanes, earthquakes, government restrictions, terrorist acts or other causes beyond its reasonable control. In the event Kenso Software’s performance is suspended for 15 consecutive days in accordance with this Section, Client may elect to immediately terminate this Agreement and applicable Order Form(s) without incurring liability in connection with such termination.
Client agrees not to solicit any personnel of Kenso Software involved with the delivery of Services in connection with any Order Form during the term of and for twelve (12) months after termination or expiration of such Order Form; provided that Client may hire an individual employed by Kenso Software who, without other solicitation, responds to advertisements or solicitations aimed at the general public.
Kenso Software may supply Client with technical data that is subject to export control restrictions. Kenso Software will not be responsible for compliance by Client with applicable export obligations or requirements for this technical data. Client agrees to comply with all applicable export control restrictions. If Client breaches this Section 13.6 or the export provisions of an applicable end user license agreement for the Software, or any provision referencing these sections, Kenso Software may terminate this Agreement and/or the applicable Order Form and its obligations thereunder without liability to Client. Client acknowledges and agrees that to provide the Services, it may be necessary for Client Information to be transferred between Kenso Software, its Affiliates, Business Partners, and/or subcontractors, which may be located worldwide.
Each party agrees to give the other a written description of any problem(s) that may arise and to make a good faith effort to amicably resolve any such problem before commencing any proceeding. Notwithstanding the foregoing, either party may take any action reasonably required to protect such party’s rights. No claim or action, regardless of form, arising out of this Agreement or an Order Form may be brought by either party more than one (1) year after the cause of action has accrued.
All headings contained in this Agreement are inserted for identification and convenience and will not be deemed part of this Agreement for purposes of interpretation.
If any provision of this Agreement is held invalid or unenforceable for any reason but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable. If such provision cannot be so modified, the parties agree that such invalidity will not affect the validity of the remaining provisions of the Agreement.
The delay or failure of either party to exercise any rights under this Agreement will not constitute or be deemed a waiver or forfeiture of such rights. No waiver will be valid unless in writing and signed by an authorized representative of the party against whom such waiver is sought to be enforced.
Each Order Form (a) is a separate agreement and is deemed to incorporate this Agreement, unless otherwise expressly provided in that Order Form; (b) constitutes the exclusive terms and conditions with respect to the subject matter of that Order Form, notwithstanding any different or additional terms that may be contained in the form of purchase order or other document used by Client to place orders or otherwise effect transactions under this Agreement; and (c) represents the final, complete and exclusive statement of the agreement between the parties with respect thereto, notwithstanding any prior written agreements or prior and contemporaneous oral agreements with respect to the subject matter of the Order Form.
In the event of any conflict between this Agreement, any Order Form and any end user license agreement for Software, this Agreement will take precedence unless otherwise expressly provided in the Order Form. Notwithstanding any provision to the contrary in this Agreement, any applicable end user license agreement will be governed by the laws of the State of North Carolina and of the United States, without regard to any conflict of laws provisions. Any claim relating to the provision of the Services by Kenso Software, its Affiliates or their respective personnel will be made against Kenso Software alone.
Neither this Agreement nor any Order Form may be amended or modified except in a writing signed by the parties, which writing makes specific reference to this Agreement or the applicable Order Form.