Kaazing shall provide Customer access to its proprietary DisasterAWARE Enterprise™ services (the “Service”) subject to the terms and conditions set forth in this agreement and the description of services and pricing provided in the order form. Kaazing shall provide Customer with login and password information for each authorized subscribed user.
If Customer has purchased DisasterAWARE Enterprise™ subscription service, Customer shall in its discretion authorize certain of its employees and contractors to access that Service as users. Collectively, Customer’s employees and contractors who access Kaazing DisasterAWARE Enterprise™ Service as provided above are referred to as “User(s)”. Users of DisasterAWARE Enterprise™ are named and must have a unique ID and logon for each User that cannot be shared.
Customer is the sole and exclusive owner of all Customer Data and all Intellectual Property Rights in the foregoing, whether or not provided to any other party under this Agreement. Customer Data will be governed under this section of the Agreement. Kaazing will not use Customer Data for any purpose other than that of providing the Software or rendering the Services under this Agreement, nor sell, assign, lease, or dispose of Customer Data. Customer assumes full responsibility for its employees, vendors, representatives, agents, and its clients (“Customer Representatives”) with respect to the transmission of Customer Data sent directly by Customer to Kaazing. Customer assumes full responsibility to safeguard against unauthorized access and provide appropriate protection of its Customer Data prior to and during the transmission or transfer of its Customer Data to Kaazing. Customer and Kaazing acknowledge that the accuracy of delivering the Software and Services depends upon the accuracy and completeness of the Customer Data and/or business requirements needed to deliver the Software and Services by Kaazing. Customer accepts sole responsibility for errors in the Software or Services to the extent resulting from inaccurate or incomplete Customer Data supplied to Kaazing by Customer or Customer Representatives.
Subscribed user can setup & update their own individual password, which may not be shared with another individual for any reason. User is entirely responsible for maintaining the confidentiality of such passwords and of its accounts (including, if applicable, the passwords and accounts of each of the Customer personnel accessing the System by means of an account established by Customer). Customer is responsible for all access to and use of the System through Customer's passwords.
Kaazing is not responsible for any unauthorized access and/or use by any third party who independently gains access to Customer’s instance of the Software on the System and/or related information, provided that such access is not caused or contributed to by Kaazing. Customer will notify Kaazing promptly of any unauthorized use of any user accounts or of any other breach of security occurring as a result of any activities of any of Customer's end-users or of any vulnerability that Customer believes are contained in or caused by the System such that Kaazing may take or recommend appropriate remedial measures. Kaazing will have no liability for any loss or damage arising from Customer’s failure to comply with the provisions of this Section 2.
Kaazing and Customer agree (a) to maintain and update an industry standard anti-virus program within their respective computer systems and (b) to use commercially reasonable efforts to check attachments to e-mail messages that a party receives before saving such attachments to their respective organization’s hard drives or servers.
Subject to the terms and conditions of this Agreement, including, but not limited to, payment by Customer of the applicable fees set forth on the Order Form, Kaazing grants to Customer during the subscription term a limited, non-exclusive, non-transferable license, without the right to sublicense, to remotely access and use the System that is located on the Kaazing Server in accordance with the terms of this Agreement for the length of the Term solely for Customer’s internal business purposes. Use of the System is limited to employees of Customer for whom Kaazing has received notification and those parties specifically authorized, such notification provided when requesting user IDs and passwords for such users. Use of the System is further limited to the number of users designated in the Order Form. Kaazing authorizes Customer to use, copy and distribute Kaazing Content provided that (1) the use and distribution of Kaazing Content is limited to Customer, its representatives, and/or its clients, and (2) all copies of Kaazing Content will retain all copyright or proprietary notices. Any other use or distribution of Kaazing Content, unless authorized in writing by Kaazing, is prohibited.
Reservation of Rights
All Software is licensed by Kaazing to Customer, not sold, and nothing in this Agreement will be interpreted or construed as a sale of the Software. Licensee will not have any rights in or to the Software, except as expressly granted in this Agreement, and Kaazing retains all copyright, patent, and other intellectual property rights in and to the Software. The Software, all copies thereof, any derivative works, compilations, and collective works of the Licensed Software, and any know-how and trade secrets related thereto are the sole and exclusive property of Kaazing and contain Kaazing’s confidential and proprietary materials.
Restrictions and Licensee Obligations
Licensee may not use the Software in any manner that could damage, disable, overburden, or impair servers, networks or other devices running, or connected to, the Software;
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Licensee will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Software; (b) rent, lease, or sublicense the Software; (c) use the Software on a service bureau or application service provider basis; (d) provide, divulge, disclose, or make available to, or permit the use of the Software by any third party; nor (e) circumvent or disable any technological features or measures in the Software;
Licensee will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on any part of the Software;
Licensee will at all times comply with all applicable laws, statutes, ordinances, and regulations in connection with its use of the Software.
FEES AND PAYMENT TERMS
14 Day Free Trial
A 14 days Free Trial allows you access to Kaazing’s DisasterAWARE Enterprise™ Software unless it is specified otherwise in separate agreement. Kaazing reserves the right to withdraw or to modify this Free Trial Offer and/or the Terms and Conditions of the Free Trial at any time without prior notice and with no liability. After the 14 Days Free Trial access has expired, if there is no purchase order form put in place, Kaazing reserves the right to disable user’s access.
Customer shall pay the fees due to Kaazing set forth in the signed order form in U.S. dollars (collectively “Fees”). Unless otherwise set forth in this Agreement, all Fees will be due within thirty (30) days after the date of the invoice. If Customer exceeds the usage levels specified in the order form, then Kaazing may invoice Customer for any overages at the rates set forth in the applicable Order. Annual Subscription Fees are paid annually in advance and are due on the anniversary of the Effective Date. Kaazing shall invoice Customer annually 30 days prior to the anniversary of the Effective Date. All payments shall be made within thirty (30)days from the date of the invoice, after which interest shall accrue at a rate of one and one-half percent (1.5%) per month or the highest rate allowed by applicable law, whichever is lower. Such interest shall be in additional to any other rights and remedies of Kaazing. Unless otherwise provided,
Kaazing reserves the right at any time to increase the Fees for access and use of the Software or institute new charges for Software or services upon reasonable notice to Licensee, such notice to be not less than thirty (30) days prior to such change being effective. Price changes will not apply to any Software or services being used by Licensee in the then current Term, but will apply to any new subscriptions, Software or Services ordered during the then current Term or any subsequent Term. Fees are due in advance of any subscription term.
Other than federal and state net income taxes imposed on Kaazing by the United States, Licensee will bear all taxes, duties, levies, fees and other governmental charges (collectively, “taxes”) resulting from this Agreement and Licensee’s use of the Software. Licensee will pay any additional taxes as are necessary to ensure that the Fees received after all such taxes are paid are equal to those specified in this Agreement as if the taxes did not exist.
If Kaazing is legally obligated to collect or pay taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides a valid tax exemption certificate. All Fees payable under this Agreement are fully earned, non-cancelable and the sums paid are non-refundable. If any amounts are withheld by Customer, Customer will, within fifteen (15) days from receipt of invoice (“Dispute Period”), provide Kaazing a reasonably detailed written explanation of the nature of the dispute, which explanation will set forth the dollar amounts withheld and the reasons for withholding such amounts. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute will be deemed waived. For clarity, Customer remains obligated to pay Kaazing for all portions of the applicable invoice that are not under reasonable and good faith dispute.
Licensee certifies that any information provided directly or indirectly to Kaazing, including contact information, is accurate. Licensee also agrees to maintain and update such information as necessary so that it remains accurate and current. In the event that any information provided is inaccurate or not up-to-date, Kaazing reserves the right to suspend services or terminate this Agreement.
During the term of this Agreement, and for so long as Licensee is current with its payment of Fees, Kaazing will provide Licensee with Support Services as specified in its then current DisasterAWARE Enterprise™ Support Services Agreement.
Licensee agrees and acknowledges that the Software contains proprietary and trade secret information that is the sole and exclusive property of Kaazing and that Licensee may obtain information relating to Kaazing, and the Software Which Licensee knows, or has reason to know is of a confidential and/or proprietary nature (“Confidential Information”). Confidential Information will include, without limitation, the specific design and structure of the Software. Licensee will at all times, during the term of this Agreement and at all times thereafter, keep in confidence and trust all the Confidential Information provided to Licensee. Licensee will not use the Confidential Information other than as necessary to exercise its rights under this Agreement. Licensee will take all reasonable steps to prevent unauthorized disclosure or use of the Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons.
Licensee will not disclose Confidential Information to any person or entity other than its officers, employees and consultants who need access to such Confidential Information in order to effect the intent of this Agreement and who have entered into written confidentiality agreements with Licensee which protect the Confidential Information containing terms and conditions at least as protective of Kaazing’s rights as the terms and conditions herein. These obligations will not apply to the extent that Confidential Information includes information which: (a) is, or, through no act or failure to act of Licensee, becomes publicly known; or (b) is approved for release by written authorization of Kaazing. A disclosure by Licensee of Confidential Information: (x) in response to a valid order by a court or other governmental body; or (y) otherwise required by law, will not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Licensee will provide prompt written notice thereof to Kaazing to enable Kaazing to seek a protective order or otherwise prevent such disclosure and reasonably cooperate with Kaazing in seeking same.
Licensee further agrees not to disclose test or benchmark results to any third party without Kaazing’s prior written consent. Licensee recognizes and acknowledges that any use or disclosure of the Confidential Information in a manner inconsistent with the provisions of this Agreement will cause Kaazing irreparable damage for which remedies at law may be inadequate. Accordingly, Kaazing will have the right to seek in any court of competent jurisdiction an immediate injunction or other equitable relief in respect of any breach of these confidentiality obligations. Notwithstanding the foregoing, this paragraph will not in any way limit the remedies in law or equity otherwise available to Kaazing.
Either party may terminate this Agreement effective immediately if the other party is in material breach of any obligation, representation or warranty under this Agreement and fails to cure such material breach (if capable of cure).
Kaazing may suspend the Service or any portion thereof for (1) emergency network repairs, threats to actual breach of network security; (2) any substantive violation by Customer (3) any legal, regulatory, or governmental prohibition affecting the Service. Kaazing will use its best efforts to notify Customer through its Application platform or email prior to such suspension and shall reactivate any affected portion of the Service as soon as possible.
Effects of Termination
In the event of the expiration or termination of this Agreement, Licensee will immediately terminate all use of the Software and any documentation and any Kaazing Confidential Information in its possession, and pay any Fees or other amounts owed to Kaazing. If requested by Kaazing, Licensee will provide Kaazing with a writing certifying the destruction of the Software, documentation and Kaazing Confidential Information signed by an officer of Licensee.
Upon expiration or termination of this Agreement the provisions relating to ownership of proprietary information and confidentiality and any other provisions, which expressly or by implication are intended to come into force or continue in force on or after the termination or expiration of this Agreement, shall so survive.
Kaazing warrants that the Software will operate or be provided in material conformity with the applicable documentation provided by Kaazing and that the functionality of the Software will not be materially decreased during a Subscription Term. For any breach of this warranty, Licensee's sole and exclusive remedy, and Kaazing's sole and exclusive liability, will be for Kaazing to correct any reported failure in the Software causing a breach of this warranty. Kaazing will have no obligation with respect to a warranty claim hereunder unless notified of such claim within thirty (30) days of the first instance of any material functionality problem. Subject to the foregoing warranty Kaazing reserves the right, for any reason, in Kaazing’s sole discretion and without notice to Licensee, to modify or change the Software, to provide additional features or functions, or to enhance, delete or modify its format or presentation.
Licensee represents and warrants to Kaazing that the downloading, installation and use of the Software will be in compliance with its internal security and information technology policies and practices and that Licensee understands and accepts all risks to the security of its network and devices in its configuration and use of the Software.
DISCLAIMER OF WARRANTIES
EXCEPT FOR KAAZING’S EXPRESS WARRANTY IN SECTION 9.1, LICENSEE ACKNOWLEDGES AND AGREES THAT USE OF THE SOFTWARE IS AT ITS OWN RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH LICENSEE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ARE PROVIDED "AS IS" AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND KAAZING AND ITS LICENSORS HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. KAAZING AND ITS LICENSORS DO NOT WARRANT AGAINST INTERFERENCE WITH LICENSEE’S ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SOFTWARE WILL MEET LICENSEE REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KAAZING OR ITS AUTHORIZED REPRESENTATIVE WILL CREATE A WARRANTY. THE APPLICATION IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER ACTIVITIES IN WHICH THE FAILURE OF THE APPLICATION COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
For purposes of this Section on indemnity, the following terms will have the meanings defined herein:
12.1.1 “Claims” means all claims, actions, demand, and legal proceedings of any kind.
12.1.2 “Damages” means all liabilities, damages, losses, judgments, authorized settlements, fines, costs and expenses including, without limitation, reasonable legal support costs and expenses.
Providing Licensee has tested and accepted the Software paid the Fees, Kaazing will defend, indemnify and hold Licensee and its affiliates and their respective successors, assigns, officers, directors and employees harmless from and against any and all Claims and Damages based upon or arising out Claims that the Software infringes any patent issued by the United States, Canada, European Union or a country therein, Switzerland or Japan, or any copyright, trademark, trade secret, or any other proprietary right held by any third party. Kaazing’s indemnity obligations will not apply to any infringement claims arising out of, or resulting from: (i) any Software not developed by Kaazing; (ii) any Software, product or service developed in accordance with Licensee’s specifications; (iii) any modifications of the Software made by anyone other than Kaazing if the alleged infringement relates to such modification, (iv) a combination of the Software with other software, products, services, processes or materials not provided by Kaazing where the alleged infringement relates to such combination, (v) Licensee’s continued alleged infringing activity, after having been notified by Kaazing that such activity is or may be infringing; (vi) failing to use a more current release of the Software where such newer release would prevent, avoid or minimize the alleged infringement without significant loss of performance or functionality, (vii) use of the Software not strictly in accordance with this or any other written Agreement signed by an officer of Kaazing, (viii) any “open source” software included in or used with the Software.
If the use or sale of any Software furnished hereunder is enjoined as a result of such suit, or if the use or sale of any Software furnished hereunder is, or in the opinion of Kaazing is likely to be, enjoined, Kaazing will, at Kaazing’s option, (i) obtain for Licensee the right to use the Software; or (ii) will substitute an equivalent product reasonably acceptable to Licensee and extend this indemnity thereto or, (iii) at Kaazing's discretion, terminate this Agreement and reimburse Licensee any pre-paid Fees for the then current Subscription Term. This indemnity does not extend to any suit based upon any infringement or alleged infringement of any patent or copyright to any Software(s) of Licensee’s design or formula.
This Section 12 states Kaazing’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by Kaazing.
Licensee agrees to defend, indemnify, and hold harmless Kaazing and its respective directors, officers, employees, representatives, agents, successors, assigns, customers and distributors from and against any and all Claims and Damages arising out of or in connection with: (i) Licensee’s breach of this Agreement; (ii) any willful or negligent act of Licensee or its employees, agents or representatives; (iii) any Claim that an act or omission by Licensee gave rise to any death or bodily injury or damage to any tangible or personal property; (vi) any violation by Licensee of any governmental or regulatory laws, rules, ordinances, or regulations.
In the event of any Claims, for which a party seeks indemnification as set forth in this Section 12, the indemnified party will: (i) promptly notify the indemnifying party, (ii) at the indemnifying party’s expense, reasonably cooperate with the indemnifying party in the defense thereof, and (iii) not settle any such Claims without the indemnifying party’s consent which the indemnifying party agrees not to unreasonably withhold or delay. The indemnifying party will keep the indemnified party reasonably informed at all times as to the status of any claim. No settlement will include any admission of fault or any public statement by the indemnified party without the indemnified party’s prior written consent which will not unreasonably be withheld or delayed.
US GOVERNMENT RIGHTS
The Software is a “commercial item” as that term is defined at FAR 2.101. If Licensee is the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Kaazing provides the Software, including any related software, technology, technical data, and/or professional services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Kaazing to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
Licensee acknowledges and agrees that it shall not import, export, or re-export, directly or indirectly the Software to any country in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, without limitation, the export regulations of the United States, and the import and export restrictions of various other countries. Licensee further agrees to defend, indemnify and hold Kaazing harmless for any losses, costs, claims or other liabilities arising out of Licensee’s breach of this Section.
During the term of this Agreement Licensee may provide Kaazing with oral feedback and/or written feedback related to the Software or Kaazing products, services or technology, including, but not limited to, a report of any errors which Licensee may discover in the Software, products, services or technology or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by Licensee to Kaazing (“Feedback”) will be the property of Kaazing. Licensee agrees to assign, and hereby assigns, all right, title and interest worldwide in the Feedback it gives to Kaazing including the related intellectual property rights, and agrees to assist (at Kaazing’s expense) in perfecting and enforcing such rights.
Except for an obligation to pay Fees, the parties hereto shall be excused from any failure to perform any obligation hereunder to the extent such failure is caused by war, acts of public enemies, strikes or other labor disturbances, fires, floods, acts of God, or any causes of like or different kind beyond the control of the parties, provided that such party gives prompt written notice of such condition and resumes its performance as soon as possible, and provided further that the other party may terminate this Agreement by written notice to the non-performing party if such condition continues for a period of thirty (30) days.
Licensee may not assign by operation of law or otherwise its rights or obligations under this Agreement without the express written consent of Kaazing, which will not unreasonably be withheld or delayed. Notwithstanding anything to the contrary in this Agreement, in no event shall any such assignment result in an expansion of the scope of the license granted herein. In particular, such assignment shall not create rights that did not exist prior to the assignment, nor shall such assignment result in an expansion of the scope of the use including, but not limited to the number and type of Instances.
Severability, Entire Agreement, Waiver
In the event any provision of this Agreement is held to be invalid or unenforceable, such provision will be severed from the remainder of this Agreement, and such remainder will remain in force and effect. The parties agree to replace any such invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements relating to the subject matter herein, whether written or oral. The failure of Kaazing to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision, which will still be available to Kaazing.
No Third Party Beneficiaries
Nothing in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and permitted assigns, any rights or remedies under or by reason of this Agreement.
Customer agrees to permit Kaazing's reasonable reference to Customer's status as a user of the Software, including captioned quotations in product literature or advertisements, websites, articles, press releases, marketing literature, presentations and the like, and occasional use as a reference for potential new users.