KAPE ENTERPRISE LICENSE TERMS AND CONDITIONS
THESE ENTERPRISE LICENSE TERMS AND CONDITIONS (“T&C”) ARE ENTERED INTO AS OF THE DATE INDICATED IN THE ORDER (THE “EFFECTIVE DATE”) BY AND BETWEEN KROLL ASSOCIATES, INC., A DELAWARE CORPORATION, WITH OFFICES AT 55 EAST 52nd STREET, NEW YORK, NY 10055 (“LICENSOR”) AND THE ENTITY IDENTIFIED ON THE SIGNATURE PAGE ABOVE (“LICENSEE”). TERMS CAPITALIZED AND NOT DEFINED IN THE CONTEXT IN WHICH THEY APPEAR HAVE THE MEANINGS GIVEN TO THEM IN EXHIBIT A.
The Parties agree as follows:
1.1 License Grant. Subject to and conditioned on Licensee’s payment of the license fees and compliance with all other terms and conditions of the applicable Agreement, Licensor hereby grants to Licensee a limited, non-exclusive, non-sublicensable, non-assignable (except in compliance with Section 15.6), non-transferable (except in compliance with Section 15.6), revocable, worldwide license to use the Software and Documentation solely for the Permitted Use during the Order Term.
1.2 Scope of Licensed Use. Licensee may install, use, and run the Software on Licensee’s network for use by up to the number of Authorized User(s) permitted at a time as specified in the applicable Order invoice. The total number of Authorized Users will not exceed the number set forth in such Order, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable under such Order. Licensee will be responsible for ensuring its Authorized Users’ compliance with the applicable terms and conditions of each Agreement and will be fully liable for any breach of, or acts or omissions under, an Agreement by its Authorized Users.
1.3 Targets and Modules. Licensor may make available to Licensee a GitHub or other online repository of community created targets and modules for use with the Software. Licensee is strongly encouraged, though not required, to share new targets and modules it creates with the KAPE community through such repository, just as it may benefit from the use of community created items, subject to the applicable Open Source License(s) as set forth in Section 1.4.
1.4 Open Source Licenses. The Software and certain Third-Party Materials (such as community created targets and modules) include or comprise Open Source Components licensed under the terms of the applicable end user license that accompanies such open source software (each, an “Open Source License”). Any use of the Open Source Components by Licensee is governed by, and subject to, the terms and conditions of the Open Source License(s).
1.6 Suspension. Licensor may, directly or indirectly, and by use of a disabling device or any other lawful means, suspend or deny Licensee’s, any Authorized User's, or any other Person's access to or use of all or any part of the Software or Documentation, without incurring any resulting obligation or liability, if: (a) Licensor receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Licensor to do so; or (b) Licensor believes, in its good faith and reasonable discretion, that: (i) Licensee or any Authorized User has failed to comply with any term of an Agreement, or accessed or used the Software beyond the scope of the rights granted or for a purpose not authorized under an Agreement or in any manner that does not comply with any instruction or requirement of any specifications; (ii) Licensor or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any use of the Software; or (iii) an Agreement expires or is terminated. This Section 1.6 does not limit any of Licensor’s other rights or remedies, at law, in equity, or under an Agreement.
2. License Restrictions. Except as an Agreement expressly permits, Licensee will not, and will not permit any other Person to: (a) copy the Software, in whole or in part; (b) alter, modify, correct, adapt, translate, enhance, or otherwise prepare Improvements of or to any Software; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (e) block, disable, or otherwise affect any links to other sites and services, or other features that constitute an integral part of the Software; (f) bypass or breach any security device or protection used for or contained in the Software or Documentation; (g) remove, delete, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation; (h) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law; (i) use the Software or Documentation for purposes of: (1) benchmarking or competitive analysis of the Software; or (2) developing, using or providing a competing software product or service; (j) use the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or (k) use (i) the Software or Documentation other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by an Agreement; or (ii) any Open Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open Source License.
2.1 Orders. Licensee may wish to enter into an order or orders under this T&C for Licensor to license Software and/or perform related services (e.g., training). No order is binding until signed by each Party’s authorized representative. Once signed by both Parties, an order, together with its applicable exhibits and any and all schedules, attachments and appendices thereto, will become a binding “Order” for the specific Software and services it describes. Licensee may request additional Orders under this T&C. This T&C and each Order entered into under it, any and all exhibits to the foregoing, and any and all schedules, attachments and appendices to the foregoing, each as may be amended from time to time in accordance with the terms hereof, form a fully separate contractual arrangement between Licensee and Licensor, each of which is referred to as an “Agreement.” In the event of any inconsistency between the statements made in this T&C or an Order (other than an exception expressly set forth as such therein), following order of precedence governs: (a) first, the Order; (b) second, this T&C.
3. Delivery. Licensor will deliver one copy of the Software electronically, on tangible media, or by other means, in Licensor’s sole discretion, to Licensee. Risk of loss of any tangible media on which the Software is delivered will pass to Licensee on delivery to carrier.
4. Training. If set forth in an Order and subject to payment of the fees set forth therein, Licensor will provide its standard, one-time training to Licensee’s personnel on installing, maintaining, and using the Software. The one-time training will consist of an approximate four-hour block that will address critical artifacts including evidence of execution, document and folder opening, registry, and example applications of the Software targets and modules. No certification of proficiency is provided under this training. Licensor will provide such training remotely during normal business hours on a date and to the location to be agreed upon by the Parties. Training will be presented to Licensee personnel who will maintain and facilitate the Software and to a commensurate number of personnel as agreed upon, and determined by, the Authorized User Limit under this Agreement.
5. Feedback. Licensee may choose to, or Licensor may invite Licensee to submit comments or ideas about the Software or Documentation, including about how to improve the Software, Documentation or Licensor’s other products or services (“Feedback”). By submitting any Feedback, Licensee agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Licensor under any fiduciary or other obligation, and that Licensor is free to use the Feedback without any compensation to Licensee, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Licensee further acknowledges that, by acceptance of Licensee’s submission, Licensor does not waive any rights to use similar or related ideas previously known to Licensor, or developed by its employees or contractors, or obtained from sources other than Licensee.
6. Maintenance Releases. During the Order Term, Licensor will provide Licensee with all Maintenance Releases (including updated Documentation) that Licensor may, in its sole discretion, make generally available to its licensees of the Software at no additional charge. Licensee does not have any right hereunder to receive any New Versions of the Software that Licensor may, in its sole discretion, release from time to time. Licensee may license any New Version at Licensor’s then-current list price and subject to a separate agreement, provided that Licensee is in compliance with the terms and conditions of the applicable Agreement.
7. Fees and Payment.
7.1 License Fees; Payment. Licensee will pay Licensor the license fees and other fees set forth in the applicable Order in accordance with that Order and the terms of this Section 7. If an Order Term is renewed for any Renewal Order Term(s) pursuant to the applicable Order, Licensee will pay the then-current standard license fees that Licensee charges for the Software during the applicable Renewal Order Term. Licensee will pay all amounts due and owing under the applicable Agreement within thirty (30) days after the date of Licensor’s invoice therefor. Licensee will make all payments hereunder in US dollars by the payment method(s) set forth in the applicable Order to the address or account specified in such Order or such other address or account as Licensor may specify in writing from time to time.
7.2 Taxes. All fees and other amounts payable by Licensee under the applicable Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.
7.3 Late Payment. If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to Licensor: (a) Licensor may charge interest on the past due amount at the rate of 2% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Licensee will reimburse Licensor for all costs incurred by Licensor in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for 10 days following written notice thereof, Licensor may: (i) disable Licensee’s use of the Software; (ii) withhold, suspend or revoke its grant of license; and/or (iii) terminate the applicable Agreement(s) under Section 14.3(b).
7.4 No Deductions or Setoffs. All amounts payable to Licensor under each Agreement will be paid by Licensee in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
8. Audits. Licensor or its nominee (including its accountants and auditors) may, on reasonable notice, inspect and audit Licensee’s use of the Software under, and compliance with, each Agreement at any time during the Term and for two (2) years following the termination or earlier expiration of the applicable Agreement. All audits will be conducted during regular business hours. Licensee will make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of Licensor with respect to such audit. If the audit determines that Licensee’s use of the Software exceeded the usage permitted by the applicable Agreement, Licensee will pay to Licensor all amounts due for such excess use of the Software as set forth in the applicable Order, plus interest on such amounts, as calculated pursuant to Section 7.3. Licensee will make all payments required under this Section 8 within 10 days of the date of written notification of the audit results.
9.1 Confidential Information. Licensor may disclose or make available Confidential Information to Licensee. Licensee will: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the applicable Agreement; (b) except as may be permitted under the terms and conditions of Section 9.2, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of Licensee’s exercise of its rights or performance of its obligations under and in accordance with the applicable Agreement; (ii) have been informed of the confidential nature of the Confidential Information and Licensee’s obligations under this Section 9; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (d) promptly notify Licensor of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (e) require its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
9.2 Exclusions. Confidential Information does not include information that Licensee can demonstrate by written or other documentary records: (a) was rightfully known to Licensee without restriction on use or disclosure prior to such information being disclosed or made available to Licensee in connection with the applicable Agreement; (b) was or becomes generally known by the public other than by Licensee’s or any of its Representatives’ noncompliance with the applicable Agreement; (c) was or is received by Licensee on a non-confidential basis from a third party that, to Licensee’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by Licensee without reference to or use of any Confidential Information.
9.3 Compelled Disclosures. If Licensee or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, Licensee will: (a) promptly, and prior to such disclosure, notify Licensor in writing of such requirement so that Licensor can seek a protective order or other remedy or waive its rights under Section 9.1; and (b) provide reasonable assistance to Licensor, at Licensor’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If Licensor waives compliance or, after providing the notice and assistance required under this Section 9.3, Licensee remains required by Law to disclose any Confidential Information, Licensee will disclose only that portion of the Confidential Information that Licensee is legally required to disclose and, on Licensor’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Intellectual Property Rights
10.1 Intellectual Property Ownership. Licensee acknowledges and agrees that: (a) Licensor is the sole and exclusive owner of all right, title and interest in and to the Software and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Third-Party Materials and the limited license granted to Licensee under the applicable Agreement. The Software and Documentation are licensed, not sold, to Licensee by Licensor and Licensee does not have and will not acquire under or in connection with any Agreement any ownership interest in the Software or Documentation, or in any related Intellectual Property Rights; and (b) if and to the extent Licensee acquires any right, title or interest, including any Intellectual Property Rights, in or to the Software or Documentation (including any rights in Improvements of or to either of them), now or hereafter, by operation of law or otherwise, Licensee hereby unconditionally and irrevocably assigns to Licensor or Licensor’s designee, its entire right, title and interest in and to any and all such rights.
10.2 Licensee Cooperation and Notice of Infringement. Licensee will, during the Term: (a) take all reasonable measures to safeguard the Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access; (b) at Licensor’s expense, take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability and Licensor’s ownership of the Intellectual Property Rights in the Software and Documentation; (c) promptly notify Licensor in writing if Licensee becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Licensor’s Intellectual Property Rights in or relating to the Software or Documentation; or (ii) any claim that the Software or Documentation, including any production, use, marketing, sale or other disposition of the Software or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and (d) fully cooperate with and assist Licensor in all reasonable ways in the conduct of any Action by Licensor to prevent or abate any actual or threatened infringement, misappropriation or violation of Licensor’s rights in, and to attempt to resolve any Actions relating to, the Software or Documentation.
10.3 No Implied Rights. Except for the limited rights and licenses expressly granted under an Agreement, nothing in an Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software or Documentation.
11. Representations and Warranties
11.1 Mutual Representations and Warranties. Each Party represents, warrants and covenants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) the execution of this T&C and each Order by its representative whose signature is set forth at the end of this T&C and each Order has been duly authorized by all necessary corporate or organizational action of such Party; and (c) when executed and delivered by both Parties, each Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
11.2 Limited Warranty. Subject to the limitations and conditions set forth in this Section 11.2 and Section 11.3, Licensor warrants to Licensee that for a period of sixty (60) days from the date of initial delivery of the Software to Licensee (the “Warranty Period”) the Software will substantially conform in all material respects to the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with the applicable Agreement. The limited warranty set forth in this Section 11.2 applies only if Licensee: (a) notifies Licensor in writing of the warranty breach before the expiration of the Warranty Period; (b) has promptly installed all Maintenance Releases to the Software that Licensor previously made available to Licensee; and (c) as of the date of notification, is in compliance with all terms and conditions of the applicable Agreement (including the payment of all license fees then due and owing).
11.3 Exceptions. Notwithstanding any provisions to the contrary in the applicable Agreement, the limited warranty set forth in Section 11.2 does not apply to problems arising out of or relating to: (a) Software, or the media on which it is provided, that is modified or damaged by Licensee or its Representatives; (b) any operation or use of, or other activity relating to, the Software other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Licensee’s use in the Documentation; (c) Licensee’s or any third party’s negligence, gross negligence, abuse, misapplication or misuse of the Software, including any use of the Software other than as specified in the Documentation; (d) Licensee’s failure to promptly install all Maintenance Releases that Licensor has previously made available to Licensee; (e) the operation of, or access to, Licensee’s or a third party’s system or network; (f) any Open Source Components or other Third-Party Materials, beta software, software that Licensor makes available for testing or demonstration purposes, temporary software modules or software for which Licensor does not receive a license fee; (g) Licensee’s breach of any provision of the applicable Agreement; or (h) any other circumstances or causes outside of the reasonable control of Licensor (including abnormal physical or electrical stress).
11.4 Remedial Efforts. If Licensor breaches, or is alleged to have breached, the warranty set forth in Section 11.2, Licensor may, at its sole option and expense, take any of the following steps to remedy such breach: (a) replace any damaged or defective media on which Licensor supplied the Software; (b) amend, supplement or replace any incomplete or inaccurate Documentation; (c) repair the Software; (d) replace the Software with functionally equivalent software (which software will, on its replacement of the Software, constitute Software hereunder); or (e) if none of the foregoing remedies is reasonably available to Licensor, terminate the applicable Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Licensee, in which event: (i) Licensee will cease all use of the Software and Documentation immediately on receipt of Licensee’s notice; and (ii) provided that Licensee fully complies with its post-termination obligations set forth in Section 14.4, Licensor will promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Order Term that would have remained but for such termination.
The remedies set forth in this Section 11.4 are Licensee’s sole remedies and Licensor’s sole liability under the limited warranty set forth in Section 11.2.
11.5 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 11.2, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS,” “WHERE IS,” AND “AS AVAILABLE.” LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE TIMELY OR WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, BE SECURE, ACCURATE, RELIABLE, CORRECT, OR COMPLETE, BE FREE OF VIRUSES OR OTHER HARMFUL CODE OR ERROR FREE, OR THAT DATA WILL NOT BE LOST, DAMAGED OR CORRUPTED. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS,” “WHERE IS,” AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.
12.1 Licensor Indemnification. Licensor will indemnify, defend, and hold harmless Licensee from and against any and all Losses incurred by Licensee resulting from any Action by a third party that any use of the Software or Documentation in accordance with the applicable Agreement infringes or misappropriates such third party’s US patents, copyrights, or trade secrets. This Section 12.1 does not apply to the extent that the alleged infringement arises from: (a) Open Source Components or other Third-Party Materials; (b) combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Licensor or specified for Licensee’s use in the Documentation; (c) modification of the Software other than: (i) by Licensor in connection with the applicable Agreement; or (ii) with Licensor’s express written authorization and in strict accordance with Licensor’s written directions and specifications; (d) use of any version of the Software other than the most current version or failure to timely implement any Maintenance Release, modification, update or replacement of the Software made available to Licensee by Licensor; (e) use of the Software after Licensor’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; (f) negligence, gross negligence, abuse, misapplication, or misuse of the Software or Documentation by or on behalf of Licensee, Licensee’s Representatives, or a third party; (g) use of the Software or Documentation by or on behalf of Licensee that is outside the purpose, scope, or manner of use authorized by the applicable Agreement or in any manner contrary to Licensor’s instructions; (h) events or circumstances outside of Licensor’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (i) Actions by a third party or Losses for which Licensee is obligated to indemnify Licensor pursuant to Section 12.2.
12.2 Licensee Indemnification. Licensee will indemnify, defend, and hold harmless Licensor and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and permitted assigns (each, a “Licensor Indemnitee”) from and against any and all Losses incurred by Licensor Indemnitee resulting from any Action by a third party: (a) that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any: (i) use or combination of the Software by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in the Documentation; and (ii) information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation; (b) relating to a breach by Licensee of any representation, warranty, covenant, or obligation under the applicable Agreement; (c) relating to negligence, gross negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its Representatives with respect to the Software or Documentation or otherwise in connection with any Agreement; or (d) relating to use of the Software or Documentation by or on behalf of Licensee or any of its Representatives that is outside the purpose, scope or manner of use authorized by the applicable Agreement or the Documentation, or in any manner contrary to Licensor’s instructions.
12.3 Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly assume control of the defense and investigation of such Action and will employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor will not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which will not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee will have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 12.3 will relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitee can demonstrate that it has been materially prejudiced as a result of such failure.
12.4 Mitigation. If the Software, or any part of the Software, is, or in Licensor’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Licensee’s use of the Software is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense: (a) obtain the right for Licensee to continue to use the Software as contemplated by the applicable Agreement; (b) modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing equivalent features and functionality, and such modified or replacement software will constitute Software under the applicable Agreement; or (c) if none of the foregoing remedies is reasonably available to Licensor, terminate the applicable Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Licensee, in which event: (i) Licensee will cease all use of the Software and Documentation immediately on receipt of Licensee’s notice; and (ii) provided that Licensee fully complies with its post-termination obligations set forth in Section 14.3, Licensor will promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Order Term that would have remained but for such termination.
12.5 Sole Remedy. THIS SECTION 12 SETS FORTH LICENSEE’S SOLE REMEDIES AND LICENSOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF ANY AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13. Limitations of Liability
13.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL LICENSOR OR ITS LICENSORS BE LIABLE UNDER OR IN CONNECTION WITH ANY AGREEMENTS HEREUNDER, OR THEIR SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. LICENSEE WILL HAVE THE SOLE RESPONSIBILITY FOR PROTECTING ITS DATA, BY PERIODIC BACKUP OR OTHERWISE, USED IN CONNECTION WITH THE SOFTWARE.
13.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF LICENSOR OR ITS LICENSORS ARISING OUT OF OR RELATED TO AN AGREEMENT HEREUNDER, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR UNDER THE APPLICABLE AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14. Term and Termination
14.1 Term. The initial term of this T&C commences as of the Effective Date and continues in effect until 1 year from such date or for so long as at least one Agreement remains continuously in effect, unless terminated earlier pursuant to the terms hereof (the “Initial Term”). This T&C will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to the terms hereof or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
14.2 Termination. Each Agreement may be terminated at any time: (a) by either Party, effective on written notice to the other Party, if the other Party materially breaches an Agreement and such breach is incapable of cure or being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; (b) by Licensor for convenience upon ninety (90) days’ written notice to Licensee; or (c) by Licensor, effective immediately, if Licensee: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
14.3 Effect of Termination or Expiration
(a) On the expiration or earlier termination of an Agreement: (i) all rights, licenses and authorizations granted to Licensee under such Agreement will immediately terminate and Licensee will (A) immediately cease all use of and other activities with respect to the Software and Documentation; (B) within ten (10) days deliver to Licensor, or at Licensor’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, the Software, the Documentation and all Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to Licensor in a signed and notarized written instrument that it has complied with the requirements of this Section 14.3(a)(i);
(b) all amounts payable by Licensee to Licensor of any kind under the expired or terminated Agreement are immediately payable and due no later than ten (10) days after the effective date of the expiration or thirty (30) days after termination of such Agreement.
14.4 Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under any Agreement that, by its nature, should survive termination or expiration of an Agreement, will survive any expiration or termination of such Agreement or expiration of this T&C: this Section 14.4, , Section 7, Section 8, Section 9, Section 10, Section 12, Section 13, and Section 15.
15.1 Further Assurances. On a Party’s reasonable request, the other Party will, at the requesting Party’s sole cost and expense, execute, and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to each Agreement.
15.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in any Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
15.3 Public Announcements. Neither Party will issue or release any announcement, statement, press release, or other publicity or marketing materials relating to an Agreement or, unless expressly permitted under the applicable Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party; provided, however, that Licensor may, without Licensee’s consent, include Licensee’s name and other indicia in its lists of Licensor’s current or former customers of Licensor in promotional and marketing materials.
15.4 Notices. Except as otherwise expressly set forth in an Agreement, any notice, request, consent, claim, demand, waiver, or other communication under an Agreement will have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 15.4):
If to Licensor: Kroll Associates, Inc.,
55 East 52nd Street,
New York, New York 10055
Email: [email protected]
Attention: General Counsel
If to Licensee: Licensee’s address and email address set forth in the applicable Order.
Attention: Legal Department
Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) when received, when served on a party’s duly registered agent..
15.5 Interpretation. For purposes of each Agreement: (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to each Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Headings are for reference only and do not affect the interpretation of any Agreement. Unless the context otherwise requires, references in an Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, an Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend each Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to in an Agreement are an integral part of such Agreement as if they were set forth therein.
15.6 Assignment. Licensee will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any Agreement, or any of its obligations or performance under any Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Licensor’s prior written consent. No assignment, delegation, or transfer will relieve Licensee of any of its obligations or performance under an Agreement. Licensor may freely assign or transfer its rights, or delegate or otherwise transfer any Agreement, or its obligations or performance under any Agreement, without restriction. Any purported assignment, delegation, or transfer in violation of this Section 15.6 is void. Each Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
15.7 Export Regulation. The Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
15.8 US Government Rights. Each of the Documentation and the software components that constitute the Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
15.9 Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached an Agreement, for any failure or delay in fulfilling or performing any term of such Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, pandemics, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either Party may terminate the applicable Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.10 No Third-Party Beneficiaries. Except for the Licensor Indemnitees, each Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of any Agreement.
15.11 Amendment and Modification; Waiver. No amendment to or modification of any Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in an Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from such Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15.12 Severability. If any provision of an Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of such Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto will negotiate in good faith to modify the applicable Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.13 Governing Law; Jurisdiction. Each Agreement will be governed by the internal substantive laws of the State of New York without respect to its conflict of laws principles. The Parties acknowledge that each Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of each Agreement will be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Subject to Section 15.14, Licensee agrees to submit to the personal jurisdiction of the federal and state courts located in New York County, New York for any actions for which Licensor retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction, as set forth in Section 15.16, including any provisional relief required to prevent irreparable harm. Licensee agrees that New York County, New York is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
15.14 Arbitration. For any dispute with Licensor, Licensee agrees to first contact Licensor at [email protected] and attempt to resolve the dispute with Licensor informally. In the unlikely event that Licensor has not been able to resolve a dispute it has with Licensee after sixty (60) days, each Party agrees to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to an Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York County, New York, unless the Parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 15.14 will be deemed as preventing Licensor from seeking injunctive or other equitable relief from the courts.
15.15 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to an Agreement or the transactions contemplated thereby.
15.16 Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Section 2, Section 9, Section 10, or Section 12 of this T&C would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the Licensor will be entitled to seek equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
15.17 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to an Agreement, the prevailing Party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
15.18 Counterparts. Each Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of each Order (which incorporates by reference this T&C) delivered by email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of an Order.
15.19 Entire Agreement. Each Agreement, together with any other documents incorporated therein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of such Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the T&C, its exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein), and any other documents incorporated therein by reference, the following order of precedence governs: (a) first, the body of the T&C, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to the T&C; and (c) third, any other documents incorporated therein by reference.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than fifty percent (50%) of the voting securities of a Person.
“Authorized User” means each of the employees of Licensee (and/or its Affiliates) authorized by Licensee to use the Software in accordance with and subject to the applicable Agreement, including the usage limits set forth in the applicable Agreement.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.
“Claims” has the meaning set forth in Section 15.14.
“Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that Licensor considers confidential or proprietary, including information consisting of or relating to Licensor’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which Licensor has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing, the Software, Documentation and terms and existence of any and all Agreements are deemed Confidential Information of Licensor.
“Documentation” means Licensor’s user manuals, handbooks, training materials, instructions, installation guides, and other materials relating to the Software, including any and all end user documentation relating to the Software, that Licensor provides or makes available to Licensee in any form or medium, which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
“Effective Date” has the meaning set forth in the preamble.
“Feedback” has the meaning set forth in Section 5.
“Force Majeure Event” has the meaning set forth in Section 15.9.
“Improvements” means enhancements, improvements, additions, modifications, adaptations, integrations, changes, updates, upgrades, translations, releases, new versions, and derivative works.
“Indemnitee” has the meaning set forth in Section 12.3.
“Indemnitor” has the meaning set forth in Section 12.3.
“Initial Order Term” has the meaning set forth in the applicable Order.
“Initial Term” has the meaning set forth in Section 14.1.
“Intellectual Property Rights” means any and all (a) registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights, rights of publicity or privacy, or proprietary rights laws, and all similar or equivalent rights or forms of protection, in any part of the world; (b) all goodwill associated with the foregoing; and (c) all modifications and derivative works of and to the foregoing.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Licensee” has the meaning set forth in the preamble.
“Licensor Indemnitee” has the meaning set forth in Section 12.2.
“Loss” or “Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Maintenance Release” means any update, upgrade, release, or other Improvement of or to the Software, including any updated Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, Improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Version.
“New Version” means any new version of the Software that Licensor may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Licensor’s designation of a new version number), and which Licensor may make available to Licensee at an additional cost under a separate written agreement.
“Open Source Components” means any software component that is subject to any open source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.
“Open Source License” has the meaning set forth in Section 1.4.
“Order Term” has the meaning set forth in the applicable Order.
“Parties” has the meaning set forth in the preamble.
“Party” has the meaning set forth in the preamble.
“Permitted Use” means use of the Software by an Authorized User for the benefit of Licensee in the ordinary course of its business operations.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
”Renewal Order Term(s)” has the meaning set forth in the applicable Order.
“Renewal Term” has the meaning set forth in Section 14.1.
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, and legal advisors.
“Software” means (a) the executable, object code version of the Kroll Artifact Parser and Extractor and any and all components thereof (including modules and targets provided by or on behalf of Licensor) (“KAPE”); and (b) any and all Improvements of and to the foregoing, including any and all Maintenance Releases provided to Licensee pursuant to the applicable Agreement.
“Term” has the meaning set forth in Section 14.1.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content, targets, modules, or specifications; (b) Open Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
“Warranty Period” has the meaning set forth in Section 11.2.
Last modified June 04, 2020.