THIS MASTER SUBSCRIPTION AGREEMENT AND ITS TERMS AND CONDITIONS OF SERVICE (THE “TERMS”) CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN THE END USER CUSTOMER (PERSONALLY OR ON BEHALF OF THE END USER’S EMPLOYER, THE “CUSTOMER”) AND KOLIDE, INC., A DELAWARE CORPORATION (“KOLIDE”). THESE TERMS GOVERN KOLIDE’S PROVISION OF SERVICES AND CONTENT TO CUSTOMER AND CUSTOMER’S USE OF THOSE SERVICES AND CONTENT.
Grant of License. Kolide hereby grants to Customer a limited, non-exclusive, non-transferable right and license to use the Services and the Content solely for Customer’s own internal business purposes, subject to all of these Terms and the provisions of the subscription form signed by Customer or submitted by the Customer online (the “Subscription Form” and, together with the Terms, the “Agreement”). All rights in and to the Services and Content that are not expressly granted to Customer in the Agreement are hereby reserved by Kolide and its licensors. The term “Services” means the Kolide services that Customer has ordered from Kolide or an authorized reseller in the Subscription Form (the “Services”). The term “Content” means any and all audio and/or visual information, documents, software, and other products that Kolide makes available to Customer for use in the course of using the Services, including without limitation Kolide’s proprietary software programs, website, and any application program interface made available by Kolide (the “API”). Kolide may in its sole discretion provide Customer access to additional Content that customizes the Services for Customer. Such customized Content and Services shall be owned exclusively by Kolide and shall be governed by these Terms. Customer understands and agrees that Kolide and any authorized reseller are separate, independent contractors.
No Sublicensing; Restrictions on Use. Without the prior written consent of Kolide, unless expressly permitted herein, Customer shall not (a) license, sublicense, sell, resell, rent, timeshare, transfer, assign, distribute, or otherwise commercially exploit or make available in any way to any third party any service or software or other materials or information included with the Services or the Content; (b) make derivative works of, or otherwise modify, any Services or Content; (c) create Internet “links” to any Services or Content or “frame” or “mirror” any Services or Content on any server or wireless or Internet-based device; (d) reverse engineer any Services or Content; (e) employ or install any Content or Services on any hosts in excess of those specified on the Subscription Form; or (f) access any Services or Content in order to (i) build a competitive product or service, (ii) build a product using ideas, features, functions, or graphics similar to any Services or Content, or (iii) copy any ideas, features, functions, or graphics of the Services or Content. Customer shall not use any Services or Content in any way that infringes upon the Intellectual Property rights of any person, including without limitation Kolide. The Services and Content require license authentication to operate. Kolide reserves the right, in its sole discretion and without penalty, to terminate or suspend Customer’s access to the Services and the Content, or any portion thereof, at any time and without notice upon Kolide’s determination that its license authentication procedures have been tampered with, modified, or circumvented or Customer’s use is materially impairing Kolide’s other customers’ use of the Content; provided, Kolide shall promptly deliver notice thereafter to Customer notifying Customer of such action. Customer may use the API for purposes of integrating other elements of the Services and/or Content with Customer’s internal business tools for Customer’s internal business uses only; provided, Customer must utilize such API in accordance with any instructions provided by Kolide, which may be amended or updated at any time upon notice by Kolide, and Kolide reserves the right to temporarily or permanently terminate the API and any integration thereby should Customer’s use of the API violate this Agreement or impair Kolide’s other customers’ use of the Content; provided, Kolide shall promptly deliver notice thereafter to Customer notifying Customer of such action.
Customer Use. Customer is responsible for all activities relating to Customer’s access and use of the Services and Content and for compliance with all laws associated therewith, including without limitation those relating to data privacy, international communications, and transmission of technical or personal data. Customer agrees not to disclose or provide access to any Services or Content to any person or entity except on a need-to-know basis to employees and other persons or entities that are not direct competitors of Kolide who have contracted to provide related services to Customer and who have agreed in writing to abide by the Agreement (the “Permitted Users”). Customer shall be responsible for compliance of its Permitted Users with the terms of this Agreement. Customer shall notify Kolide immediately upon becoming aware of any unauthorized access or use of any Services or Content.
Confidentiality. (a) Definition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, pricing, customer lists, reports, contract terms, software, developments, inventions, processes, designs, drawings, engineering, hardware or software configuration information or user interfaces, marketing, organization, business or finances of or relating to either party to this Agreement or any third party, or any information obtained in confidence or in trust from a third party. Confidential Information of Kolide shall also include, without limitation, the Services and the Content (including any associated software or user interface) and any information which Customer knows or should reasonably understand to be confidential. Confidential Information of Kolide does not include information, technical data or know-how which (i) is already in Customer’s possession without obligations of confidentiality at the time of its disclosure by Kolide; (ii) is or becomes part of the public knowledge without breach of confidentiality obligations; or (iii) is approved by Kolide, in writing, for public release. (b) Confidentiality Obligations. Except as expressly set forth in this Agreement, Customer will not use in any way for Customer’s own account or the account of any third party, nor disclose to any third party, any Confidential Information of Kolide. Customer shall at all times maintain such Confidential Information of Kolide in confidence in the same manner and to the same extent as Customer protects Customer’s own most confidential information (which shall in no event be less than a reasonable degree of care). Upon the termination of this Agreement, Customer shall promptly return to Kolide or delete all copies of any Confidential Information of Kolide in Customer’s possession. (c) Feedback. Customer may from time to time provide suggestions, comments or other feedback to Kolide regarding Kolide’s current or future products and services, including the Services and the Content (collectively, “Feedback”). Customer agrees that such Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation hereunder for or upon Kolide or its use of such Feedback. Except as otherwise provided herein or in a separate subsequent written agreement signed by authorized representatives of the parties, Customer agrees that Kolide shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit any and all Feedback provided to Kolide as Kolide sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property or otherwise. Customer warrants that Customer has all rights necessary to disclose to Kolide any Feedback that Customer so discloses, and Customer shall not provide any Confidential Information of any third party to Kolide unless authorized to do so.
Payment of Fees and Charges. Customer shall timely pay to Kolide all subscription fees, charges, and other amounts required by these Terms and the Subscription Form. All subscription fees are due as described in the Subscription Form. All other fees and charges, such as late fees or charges for excess or additional usage beyond the usage specified in the Subscription Form, will be charged on or around the 10th of the subsequent month if paying by credit card, and, if paying by check or wire, must be received by Kolide within thirty (30) days from the date of Company’s invoice to Customer, or as otherwise set forth in the Subscription Form. All amounts that Customer does not pay when due shall bear interest at the rate of 1½ percent per month or the maximum legal rate, whichever is less. Customer will be responsible for all costs of collection. Kolide shall have the right to suspend Customer’s access to the Services and Content for non-payment of fees or any other amounts due from Customer to Kolide, in addition to any other remedies Kolide may have, including without limitation terminating this Agreement. In addition to any other remedies, Kolide shall have the right to charge Customer a reconnection fee if its access to the Services and Content are suspended for non-payment. All prices are exclusive of any and all taxes. Customer agrees to pay all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees that are associated with Customer’s use of the Services and Content, but excluding any taxes on Kolide’s net income. Once Customer begins using the Services, any and all fees and charges shall become non-refundable. All pricing information is Confidential Information of Kolide, and Customer shall not disclose it to any third party unless required by law, after giving notice to Kolide.
Audit. Customer agrees to make and to maintain, until the expiration of three years after the last payment under this Agreement is due, complete books, records, and accounts regarding this Agreement, Customer’s performance hereunder and Customer’s use of the Services and the Content. Kolide shall have the right not more than once annually and on at least ten days’ notice to examine such books, records and accounts during Customer’s normal business hours to verify Customer’s compliance with this Agreement. Customer agrees to remedy immediately any non-compliance with this Agreement disclosed by Kolide’s examination.
Customer System. Customer is responsible for obtaining and maintaining, at its sole expense, all of the hardware, software, and Internet connectivity and bandwidth necessary and appropriate for Customer to access and use the Services and the Content. If Customer fails to do so, Customer’s access to or ability to use the Services and the Content may be negatively affected or non-existent.
Intellectual Property Rights. (a) Ownership. As between Customer and Kolide, any and all copyright, patent, trademark, service mark and other intellectual property rights (“Intellectual Property”) associated with the Services or the Content are the sole property of Kolide or its affiliates. Such items are protected by Intellectual Property laws in the Unites States and in other countries. Elements of the Services and the Content are also protected by trade dress, trade secret, unfair competition, and other laws and may not be copied or imitated in whole or in part. As between Customer and Kolide, all custom graphics, icons, logos, and other items that appear on the Content are trademarks, service marks, or trade dress of Kolide and its affiliates or licensors. Except as expressly provided herein, Kolide does not grant to Customer any express or implied rights to Kolide’s or any third party’s Intellectual Property. Customer may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other Intellectual Property notice or legend appearing in the Content. (b) Copyright Notices. All Content are: Copyright ©, Kolide, Inc., All rights reserved. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement submitted to Kolide, Inc. should be sent to the Service Provider’s Designated Agent, Mike Arpaia, by postal mail to to Kolide, Inc., 401 Park Drive Suite 811 Boston, MA 02215; by telephone to 917-453-0964; or by electronic mail to email@example.com. (c) Third Party Software. The Content and any other software available for download via the Content or otherwise obtained from Kolide may contain or be bundled with software licensed to Kolide by third parties (collectively, “Third Party Software”) that is protected by copyright and other Intellectual Property rights of Third Party Software vendors. Use of such Third Party Software is governed by the terms of the license agreement that accompanies or is included with the Third Party Software. If no license agreement accompanies or is included with the Third Party Software, then the terms of this Agreement shall apply to the use of that Third Party Software. In the event of any conflicts between this Agreement and any applicable third party license terms, as to that specific component only, the terms of the applicable third party license agreement shall control. (d) Third Party Services. The use of certain Content may require Customer access to and use of third party websites and other services provided by third parties and not by Kolide (collectively, “Third Party Services”). Customer may be required to enter into agreements with third parties and pay fees to third parties in connection with the use of such Third Party Services. In the event that Customer provides or makes available to Kolide any third party data (whether obtained via Third Party Services or otherwise), Customer hereby grants to Kolide a royalty-free, worldwide, sublicensable, transferrable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, disclose and otherwise exploit all such data in connection with Kolide’s provision of the Services and the Content and any improvements thereto, and Customer represents and warrants that Customer possesses all rights and licenses necessary to make such grant to Kolide.
Third-Party Links. The Content may contain links to third-party websites which are not maintained by, or related to, Kolide. Links to such websites are provided as a service to users and are not sponsored by or affiliated with the Content or Kolide. Kolide has not reviewed such websites and is not responsible for the content of those websites. Kolide is not responsible for webcasting or any other form of transmission received from any linked website. Links are to be accessed at Customer’s own risk, and other than as set forth herein, Kolide makes no representations or warranties about the content, completeness or accuracy of these links or the websites linked to the Content. Kolide provides links as a convenience, and the inclusion of any link to a third-party website does not imply endorsement by Kolide of that website or any association with its operators.
Term and Termination. This Agreement shall take effect upon the execution or submission and acceptance of a Subscription Form and will remain effective until terminated as provided herein. The term of the Agreement between Kolide and Customer shall be for the period specified in the Subscription Form, whether signed with Kolide or an authorized reseller. Customer may terminate the Agreement with Kolide upon 60 days advance written notice to Kolide, except that Customer shall remain responsible for payment of all unpaid subscription fees and other charges specified in the Subscription Form, whether signed with Kolide or an authorized reseller. Kolide may terminate the Agreement with Customer by written notice to Customer (a) if Customer breaches these Terms or any provision of the Subscription Form, or (b) if Customer uses any Services or Content that is hosted by Kolide, for convenience, upon sixty (60) days advance written notice to Customer, but only with respect to such hosted Services and Content. Any and all claims and payment obligations that arose before termination shall survive such termination. The following Sections shall also survive termination: 3-6, 8-11, 13-25, 27-29. Upon termination of the Agreement, all payment obligations of Customer shall be accelerated and become immediately due and payable, and Customer shall promptly cease accessing and using the Services and Content. If Kolide terminates the Agreement solely for its convenience, Customer shall be entitled to a refund of all unused subscription fees, after deduction of any and all other fees and charges that are then due and owing from Customer.
Security. Any passwords used for the Services or the Content are for individual use only. Customer shall be responsible for the security of Customer’s passwords. Kolide may passively monitor passwords and, at its discretion, require a user to change such user’s password. If Customer uses a password that Kolide considers insecure, Kolide may require the password to be changed or may terminate a user’s account. Customer is prohibited from using any services or facilities provided in connection with the Services or the Product to compromise security or tamper with system resources or accounts. The use or distribution of tools designed for compromising security (e.g., password guessing programs, cracking tools or network probing tools) is strictly prohibited. If Customer becomes involved in any violation of system security, Kolide reserves the right to release information about Customer to system administrators in order to assist Kolide in resolving security incidents. Kolide reserves the right to investigate suspected violations of this Agreement, and to fully cooperate with any law enforcement authorities or court order requesting or directing Kolide to disclose the identity of anyone violating this Agreement or any applicable law.
Use of Message Boards. (a) User Conduct. The Services and the Content may contain forums, bulletin board services, chat areas, message boards, news groups, communities, personal web pages, calendars, and other message or communication facilities designed to allow Customer to communicate with the Internet community or with a group (collectively, “Communications Services”). Customer agrees to use the Communication Services only to post, send and receive messages and content that are proper and related to the particular Communication Service. Among other actions, when using a Communication Service, Customer agrees that Customer will not post, send, submit, publish, or transmit in connection with the Services or the Content any material that: (i) Customer does not have the right to post, including proprietary material of any third party, such as files containing software or other third party material protected by Intellectual Property laws (or by rights of privacy or publicity); (ii) violates or may violate any law, advocates illegal activity or discusses an intent to commit an illegal act; (iii) does not pertain directly to the Services or the Content; (iv) threatens or abuses others, libels, defames, invades privacy, stalks, or is obscene, pornographic, vulgar, indecent, racist, abusive, harassing, threatening or offensive; (v) seeks to exploit or harm children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (vi) harvests or otherwise collects information about others, including e-mail addresses, without their consent; (vii) impersonates or misrepresents Customer’s connection to any other entity or person or otherwise manipulates headers or identifiers to disguise the origin of the content; (viii) falsifies or deletes any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is permissibly uploaded; (ix) advertises any commercial endeavor (e.g., offering for sale products or services) or otherwise engages in any commercial activity (e.g., conducting raffles or contests, displaying sponsorship banners, or soliciting goods or services) except as may be specifically authorized by Kolide; (x) solicits funds, advertisers or sponsors; (xi) includes programs that contain viruses, worms or Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or network; (xii) disrupts the normal flow of dialogue, causes a screen to scroll faster than other users are able to type, or otherwise act in a way which affects the ability of other people to engage in real time activities via the Services or the Content; (xiii) includes MP3 format files; (xiv) amounts to a “pyramid” or other like scheme, or consists of contests, chain letters, or surveys; (xv) disobeys any policy or regulations, including any code of conduct or other guidelines, established from time to time regarding use of the Services or the Content or any networks related to the Services or the Content; or (xvi) contains links to other websites or software containing content that falls within the descriptions set forth above. (b) Right to Monitor. Kolide reserves the right to monitor use of the Services and the Content to determine compliance with this Agreement, as well as the right to remove or refuse any information for any reason. Materials uploaded to a Communication Service may be subject to limits on use, reproduction or dissemination and Customer is responsible for abiding by such limitations with respect to Customer’s submissions, including any downloaded materials
Waiver. Any waiver by Kolide of any breach of these Terms or the Subscription Form shall not be construed as a waiver of any other or future breach. No failure by Kolide to insist upon the strict performance of any covenant, duty, agreement, or condition, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of any other covenant, agreement, term, or condition.
Kolide Warranties. (a) Kolide Warranties. Kolide warrants to Customer that it will perform the Services in a competent and professional manner. (b) DISCLAIMER OF WARRANTIES. OTHER THAN THE WARRANTIES INCLUDED HEREIN, CUSTOMER’S USE OF THE SERVICES AND THE CONTENT IS AT CUSTOMER’S OWN RISK. OTHER THAN THE WARRANTIES INCLUDED HEREIN, THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. OTHER THAN THE WARRANTIES INCLUDED HEREIN, KOLIDE DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND NO WARRANTIES ARE MADE RELATING TO THE SERVICES OR THE CONTENT. OTHER THAN THE WARRANTIES INCLUDED HEREIN, KOLIDE DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS OR CONTENT CONTAINED IN THE CONTENT OR THE SERVICES WILL BE UNINTERRUPTED, ACCURATE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CONTENT, THE SERVICES, OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OTHER THAN THE WARRANTIES INCLUDED HEREIN, KOLIDE DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING USE, INABILITY TO USE, OR THE RESULT OF USE, OF THE SERVICES OR THE CONTENT IN TERMS OF ACCURACY, RELIABILITY, OR OTHERWISE.
LIMITATION OF LIABILITY. OTHER THAN THE OBLIGATIONS SET FORTH IN SECTIONS 4 (‘CONFIDENTIALITY’), 17 (‘INDEMNIFICATION’), CUSTOMER EXCEEDING THE SCOPE OF THE LICENSE HEREUNDER, CUSTOMER MISAPPROPRIATING THE SERVICES OR THE CONTENT, AND CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, (A) NEITHER CUSTOMER AND ANY OF CUSTOMER’S AFFILIATES, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS NOR KOLIDE AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS WILL BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, GENERAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, LOSS OF DATA, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR ANY OTHER DAMAGES, EVEN IF CUSTOMER OR KOLIDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT WILL THE COLLECTIVE LIABILITY OF KOLIDE AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS TO ANY PARTY (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) EXCEED THE GREATER OF $100 OR THE AMOUNT CUSTOMER HAS ALREADY PAID TO KOLIDE FOR THE APPLICABLE SERVICES OR THE APPLICABLE CONTENT OUT OF WHICH LIABILITY AROSE IN THE 6 MONTHS PRECEDING THE EVENTS GIVING RISE TO SUCH DAMAGES. SOME STATES DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, AND IN SUCH CASES KOLIDE’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY LAW.
Indemnification. Kolide will defend, indemnify and hold harmless, at its own costs and expense, Customer and Customer’s affiliates, members, officers, directors and employees against any and all claims, demands, losses, liabilities, damages, expenses (including reasonable attorney fees) and causes of action (hereinafter “Claims”) arising out of, relating to, or in connection with allegations that Customer’s use of the Services or Content infringes, violates or misappropriates any third party right (including without limitation Intellectual Property, personal, privacy or other rights). Notwithstanding the foregoing, Kolide shall have no liability under this Section 17 for any Claim resulting from (i) any modification of the Services or Content done by anyone other than Kolide, (ii) any use of the Services or Content other than in accordance with this Agreement or any instructions provided by Kolide, or (iii) any combination, operation or use of the Services or Content with any hardware or software not provided or authorized by Kolide.
Choice of Law; Dispute Resolution. This Agreement will be governed and interpreted pursuant to the laws of New York, United States of America, notwithstanding any principles of conflicts of law. The parties expressly waive and exclude the application of the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods. Customer consent to, and agree that Customer are subject to, the jurisdiction of the state and federal courts of the State of New York with respect to any actions for enforcement of or breach of this Agreement brought by Kolide against Customer. Except in the case where a party is seeking injunctive relief or other equitable relief, the parties shall first attempt, promptly and in good faith, to resolve any disputes arising out of or relating to this Agreement through discussions between themselves at the operational level. In the event a resolution cannot be reached at the operational level, the disputing party shall give the other party written notice of said dispute and such dispute shall be negotiated between senior executives of the parties who have authority to settle the controversy. If the parties fail to resolve said dispute within thirty (30) days of the disputing party’s notice, a party may seek redress as follows. Any controversy or claim arising out of or in connection with this Agreement, or the alleged breach thereof that is not resolved by the foregoing procedure shall be resolved by Arbitration, in accordance with commercial Arbitration Rules of the American Arbitration Association then in effect. A single arbitrator shall be used, and the arbitrator shall have the sole discretion to determine the nature, extent and scope of discovery in the arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Equitable Relief. Each party acknowledges that unauthorized disclosure or use of the Services or the Content or any Confidential Information would cause irreparable harm and significant injury to the other that may be difficult to ascertain. Accordingly, each party agrees that the other may seek immediate injunctive relief, without posting a bond or other security, to enforce the other party’s obligations under this Agreement in addition to any other rights and remedies such party may have.
Severability. If any provision of these Terms or the Subscription Form is determined by a court in accordance with Section 18 to be void, invalid, unenforceable, or illegal, that provision shall be construed, limited, modified, or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability, or illegality, and all remaining provisions shall remain unaffected and continue in full force and effect.
No Joint Venture. Customer agrees that no joint venture, partnership, employment, or agency relationship exists between Customer and Kolide as a result of this Agreement or use of the Services or the Content.
Attorneys’ Fees. Should Kolide bring an action to enforce this Agreement and prevail, Kolide will be entitled to recover its attorneys’ fees and costs in connection with such action.
Amendment; Waiver. The most current version of these Terms, which supersedes all prior versions, are posted online at https://www.kolide.co/terms (the “Current Terms”). Unless otherwise indicated in the Subscription Form, any changes to these Terms as posted on the Current Terms shall apply to Customer’s use of the Services and the Content after the expiration of the then-current term. Any other amendments to the Terms shall be made in writing signed by both Customer and Kolide. No waiver by either party of any breach or default by the other party of any of its obligations under these Terms shall be deemed to be a waiver of any other breach or default of the same or any other nature.
Entire Agreement. This Agreement, together with all Subscription Forms entered into by Customer and Kolide, constitute the entire agreement among the parties relating to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Customer and Kolide with respect to the Services and the Content. A printed version of this Agreement and of any notice given in electronic form shall be admissible in arbitration proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The headings in this Agreement are inserted for convenience only and do not constitute a part of this Agreement and shall not modify or limit any of the terms thereof. NO SALESPERSON, RESELLER, OR SIMILAR PERSON IS AUTHORIZED TO MODIFY THESE TERMS OR MAKE ANY REPRESENTATION, WARRANTY, OR PROMISE WITH RESPECT TO ANY SERVICES OR CONTENT THAT IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS, PROMISES, AND WARRANTIES THAT ARE EXPRESSLY SET FORTH IN THESE TERMS
Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of such party’s obligations under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of such party, including without limitation act of God, accident, earthquake, fire, flood, hurricane, tornado, storm or other weather condition, war, terrorism, cyberterrorism, hacking, sabotage, riot, civil disorder, act or decree of any governmental body, power or network failure, lockout, strike or other labor disturbance, illness, death or any other natural or artificial disaster. In the event of any such failure or delay, the parties shall use commercially reasonable efforts to perform as soon as practicable.
Assignment. Customer and Kolide may assign, sublicense or otherwise transfer this Agreement in whole or in part, whether by way of merger, acquisition of stock or assets, operation of law or otherwise, without Customer’s or Kolide’s prior written approval. This Agreement shall be binding upon and accrue to the benefit of any permitted successors and assigns. In the event that Customer’s exercise of the foregoing right to assign this Agreement during the term or a direct or indirect change of control of more than 50% of the outstanding voting power of the Customer results in a material increase in Customer’s use of the Services and Content, Customer and Kolide agree to negotiate in good faith to modify the fees payable hereunder and other applicable terms.
Notices. All notices required under this Agreement shall be made in writing, if to Kolide, to Kolide, Inc., 401 Park Drive Suite 811 Boston, MA 02215, Attn: Jason Meller and if to Customer, to the address set forth in the Subscription Form or the address Customer provides as part of the registration process, and will be deemed to have been duly given upon the attempted delivery by first class mail thereof, sent by registered or certified mail, return receipt requested, postage paid, or upon receipt or refusal of hand delivery.
Export Control; Compliance with Laws. Customer shall comply with all United States and foreign export and import laws, rules, and regulations related to Customer’s use of any Services or Content outside the United States. Customer shall be responsible for and shall pay (or reimburse Kolide for) all United States and foreign export and import duties, fees, and other governmental charges, however designated, associated with Customer’s use of any Services or Content outside the United States. Customer’s failure to comply with this provision is a material breach of this Agreement. Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (ii) Customer is not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce; and (iii) Customer shall be responsible for complying with all applicable laws related to Customer’s use of the Services and Content.
Government Use. In the event that the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, Customer agrees that the Services and Content are provided with restricted rights. In such a case, the Services and Content and the corresponding documentation are “Commercial Items,” as that term is defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section 12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users (i) only as Commercial Items and (ii) with only those rights as are granted to all other licensees and end users pursuant to Kolide’s standard Terms.
Counterparts. The Subscription Form may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile signatures and other signatures transmitted in electronic format may be accepted as original signatures.