THESE GENERAL TERMS AND CONDITIONS AND END USER LICENSE TERMS (the “Terms”) govern the provision of Hardware, Embedded Software, and Services from Marcon International Inc., also trading as KEYper Systems, a corporation having its principal place of business at 5679 Harrisburg Industrial Park Dr, Harrisburg, NC 28075,United States of America (“KEYper”) and the Customer. Each of KEYper and Customer shall also be referred to as a “Party” or, in the collective, the “Parties.”
NOW THEREFORE, in consideration of the premises and the terms and conditions set forth herein, the Parties agree as follows
Capitalized terms in these Terms have the following meanings:
- “Affiliate” means a legal entity that directly or indirectly through one or more intermediaries is controlled by or under common control with a Party’s ultimate parent company. For the purposes of this definition, the term “control” shall be understood as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a legal entity, whether through the ownership of voting stock, by contract, or otherwise.
- “Agreement” means the agreement between Customer and Supplier including these Terms and any schedules, addendums or other attachments thereto;
- “APIs” means application programming interfaces provided by KEYper with a Service.
- “Business Day” means a day (other than a Saturday, Sunday or public holiday) on which commercial banks are open for general banking business (other than for Internet banking services only) in the jurisdiction where KEYper is incorporated.
- “CCPA” means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General.
- “Confidential Information” means the Documentation, and the following information of KEYper or its Affiliates: data, drawings, benchmark tests, specifications, trade secrets, algorithms, source code, object code, know-how, formulas, processes, ideas, inventions (whether patentable or not), customer lists, schematics and other technical, business, financial, marketing and product development plans, forecasts, strategies and information, and any information disclosed by KEYper under an Agreement. The terms and conditions of an Agreement shall be treated as Confidential Information.
- “Contracted Business Purposes” means for purposes of providing the Service, including the back-up storage of Customer Content and User Data, for which KEYper receives, stores, accesses or otherwise processes Personal Data.
- “Customer Content” means User Data and other information and data used or submitted by Customer and Users in connection with use of the Hardware, Embedded Software, or Services.
- “Documentation” means the Hardware and Service specification and any proprietary information or documentation made available to the Customer by KEYper for use in conjunction with a Service, including any information available online through a Service;
- “Effective Date” means the date the Agreement is duly executed by Customer and Supplier.
- “Embedded Software” means all software including firmware on or embedded in the Hardware at the date of manufacture together with any updates or newer versions made available by KEYper from time to time.
- “User” means Customer’s employee, contractor, or other authorized individual that is authorized by Customer to use the Hardware, Embedded Software or a Service for the sole benefit of Customer.
- “User Data” means information and Personal Data of a User submitted, provided or collected in connection with the use of the Hardware, Embedded Software or a Service.
- “Force Majeure Event” means an event beyond a Party’s reasonable control including, without limitation, strikes, lock-outs or other labour disturbances or disturbances by fire, flood, war, embargoes, blockades, riots, epidemics, governmental interference, delays or shortages in transportation or inability to obtain necessary labour, materials or facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors if caused by any circumstance referred to in the foregoing.
- “GDPR” means Regulation (EU) 2016/679 (General Data Protection Regulation).
- “Hardware” means hardware (or parts) sold by Supplier to Customer for its use with the Embedded Software and, if applicable, a Service.
- “Intellectual Property Rights” means worldwide common law and statutory rights associated with (a) patents and patent applications; (b) works of authorship, including mask work rights, copyrights, copyright applications, copyright registrations and “moral” rights; (c) the protection of trade and industrial secrets and confidential information; (d) all rights to registered and common law trademarks, trade names, trade dress, and service marks; (e) other proprietary rights relating to intangible intellectual property (including but not limited to designs, design rights, source codes, proprietary material, Know-How, ideas, concepts, methods, techniques, rights in databases and all other intellectual property rights and rights of a similar character whether registered or capable of registration); (f) analogous rights to those set forth above; and (g) divisions, continuations, renewals, reissuances and extensions of the foregoing (as applicable) now existing or hereafter filed, issued or acquired.
- “Initial Subscription Period” means an initial Subscription period of 12 months from the Effective Date, or such other initial Subscription period specified in the Agreement.
- “Know-how” means unpatented technical information (including, without limitation, information relating to inventions, discoveries, concepts, methodologies, models, research, development and testing procedures, the results of tests and trials, processes, techniques and specifications, quality control data, analyses, reports and submissions) that is not in the public domain;
- “License Term” shall have the meaning set forth in Section 1.
- “Personal Data” means any information relating to an identified or identifiable natural person and shall be construed in accordance with applicable data protection law.
- “Renewal Subscription Period” shall have the meaning set forth in Section 1.
- “Service” shall mean remote software applications, including APIs, managed by KEYper, if Customer’s access to such Service is specified in the Agreement.
- “Service Specification” means the functional, technical and commercial specifications and terms and conditions of the Service, which may include, without limitation, service descriptions, statement of works, support services and pricing and commercial terms.
- “Subscription” means the non-exclusive and non-transferable right for Customer to use a Service in accordance with Customer’s agreement with the Supplier.
- “Supplier” means the entity from which the Hardware was purchased by the Customer being the Company or one of its authorised partners.
- “Support” means support services purchased by Customer as identified in the applicable Agreement.
- “Taxes” shall have the meaning set forth in Section 6.
- Licenses, ownership, and restrictions
- These Terms set forth the general terms and conditions and license terms under which KEYper sells and provides Hardware, Embedded Software, and Services.
- Grant of Rights. In consideration of Customer’s payment of the applicable fees to Supplier, and, subject to the terms and conditions of the Agreement, KEYper grants to Customer a non-exclusive, non-transferable, non-sublicenseable right and grant during the License Term, to use the Embedded Software and, where included in Customer’s agreement with Supplier, the Service in accordance with the Documentation solely for its own internal operations. The foregoing license rights shall be restricted to the number and type of licenses specified in Customer’s agreement with Supplier.
- Ownership. The license granted under the Agreement does not constitute a sale of the Embedded Software or any software in the Service or any portion thereof. KEYper and its licensors retain all right, title and interest in the Embedded Software , the Service and associated Documentation, and all translations and derivatives works thereof, including any materials, inventions, or works developed through KEYper’s performance of services, and all Intellectual Property Rights embodied therein or relating thereto. All rights not expressly granted under the Agreement are reserved by KEYper and its licensors. There are no implied rights.
- Restrictions on Use. Customer’s rights to use Service are subject to the following restrictions and Customer shall not, and shall not cause or permit any third party to: (a) modify or create any derivative work of the Embedded Software, the Service, or its associated Documentation, or any portion thereof or incorporate other services, software or products in the Embedded Software or Service; (b) decompile, reverse engineer or otherwise attempt to derive the underlying ideas, algorithms, structure or organization from Service ; (c) sell, license, sublicense, lease, rent, or otherwise transfer rights to Embedded Software or Service to any third party; (d) use the Service to submit any content that infringes or misappropriates third party rights, including intellectual property rights or to submit any content that is obscene, defamatory, offensive or malicious, (e) to intentionally distribute spam, viruses, worms, Trojan horses, corrupted files, or other items of a destructive or disruptive nature; (f) to engage in, promote, or encourage illegal activity; (g) to disable, interfere with or circumvent any aspect of Service; or (h) disclose or publish the results of any performance, functional, or other evaluation or benchmarking of Service to any third party without written consent from
- Customer’s Grant of Rights. Customer grants KEYper the right to host, use, process, display and transmit Customer Content pursuant to and in accordance with the Agreement and the applicable Agreement. Customer has the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Content and for obtaining all rights related to each of the foregoing required by KEYper to provide the Service.
- Third Party Applications. The Hardware, Embedded Software or Service may contain or include functionality and software provided or licensed by third parties (“Third Party Functionality”). For any Third Party Functionality, such components shall be licensed as part of the Embedded Software or Service in accordance with the terms and conditions of the Agreement. Notwithstanding the foregoing, all open source software provided by KEYper is outside the scope of the Agreement and is not included in the definition of “Software Product,” and such open source software is instead subject to the applicable open source software licenses.
- Modifications, Updates and Upgrades. KEYper reserves the right to, at any time, modify, update and/or upgrade, temporarily or permanently, the Embedded Software or Service (or any part thereof), provided that such modification, update and/or upgrade does not diminish the overall functionality of the Embedded Software or Service. KEYper shall have no liability in any manner whatsoever for modifying, replacing, or supporting discontinued Hardware.
- Trial Access. KEYper may provide to Customer a free trial access to and/or a demonstration version of the Service and/or Hardware for a maximum period of 90 days in order to enable Customer to evaluate the Service and/or Hardware before executing a Agreement. Customer acknowledges and agrees that Customer’s access to and use of the Service and Hardware on such a free basis shall solely be on Customer’s own risk and responsibility, on an “as is” basis, and shall at all times be in accordance with the terms and conditions of these Terms and any instructions or materials provided in connection with the provision of the free trial access. KEYper hereby disclaims any and all of its obligations and liabilities under the Agreement or otherwise, to the fullest extent permitted by applicable law, arising out of Customer’s access to and use of the Service and/or Hardware in accordance with this Section 9. Notwithstanding anything to the contrary stated in the Agreement, Customer shall fully and completely hold harmless, indemnify and release KEYper from any and all liabilities, damages, claims or demands whatsoever, which may arise as a consequence of Customer’s access to and use of the Service in accordance with this Section 2.9. Customer acknowledges and agrees that (a) KEYper will be under no obligation or liability to retain Customer Content generated during the free trial access period, unless Customer executes an Agreement within 180 days from the date hereof; (b) KEYper may change the contents of the bundle of Service features during the free trial access period, in which case Customer may not be able to retain settings used by or Customer Content generated during the free trial access period; (c) Customer may decide to execute an Agreement for a bundle of Service features which encompass different or less features than those available to Customer during the free trial access period, in which case Customer may not be able to retain settings used by or Customer Content generated during the free trial access period; (d) KEYper may, in its sole discretion, limit the number of users, doors or other peripherals connected to the Service, as well as the number of or specifics of the messages, reports, API calls or other features of the service; and (e) KEYper may, in its sole discretion, terminate Customer’s access to and use of the Service in accordance with this Section 2.9 at any time. For the avoidance of doubt, the terms and conditions for the Customer’s access to and use of the Service in accordance with this Section 2.9 do not include any support from KEYper unless separately agreed in writing.
- Disabling of Service or part thereof. KEYper may disable the functionality of the Service or part thereof: (a) immediately upon written notice to Customer, if KEYper reasonably believes that there has been a material breach in security (in which case KEYper shall reactivate the functionality of the Service when such breach has been eliminated, (b) immediately upon written notice to Customer in the event of a third party claim of infringement, violation or misappropriation of intellectual property rights, (c) in the circumstances set forth in Section 2, and (d) otherwise upon termination or expiry of the Agreement.
- PURCHASE AND DELIVERY
- Shipping, Delivery and Storage. KEYper reserves the right to make, and Customer agrees to accept, multiple shipments to fulfill an Agreement. All shipments and delivery terms are EXW (Incoterms 2010) KEYper’s warehouse, facility, or port of entry in the United States, with Freight Prepaid Add & Handling (Shipping Costs). Title and risk in and to Hardware included in a shipment transfers to Customer at the time the bill of lading is signed by the carrier. All freight and shipping costs are the responsibility of Customer. All freight and shipping costs on Agreements are estimates only and subject to change. If Customer fails to accept delivery from KEYper at the scheduled time, the remaining purchase price owed by Customer shall still be due and payable in accordance to the original payment schedule, and any and all risks associated with the Hardware (or parts) to be delivered, shall be solely borne by Customer is solely responsible for providing a safe and secure storage location for the Hardware at all times.
- Taxes. Customer shall pay, any national, state, local, or international property, license, privilege, sales, use, excise, gross receipts, VAT, ad valorem, use, duty, withholding or other like taxes relating to the sale, delivery, receipt, payment for or use of Services including any interest, penalty and additional tax or other charge related to delay or failure to pay such amount (“Taxes”), regardless of whether such Taxes are included or excluded from prices quoted. If KEYper is required to collect any Taxes, such Taxes will be itemized separately on the invoice and paid by Customer. KEYper will accept a valid Tax exemption certificate from Customer, if applicable. If an exemption certificate previously accepted by Customer is not recognized by the relevant governmental taxing authority, Customer agrees to promptly reimburse KEYper for any Taxes covered by such exemption certificate which KEYper is required to pay.
- DATA PROTECTION AND PRIVACY; Information security
- User Data Privacy. Prior to Customer processing, Customer shall disclose to Users how their Personal Data will be accessed, used, collected, and/or disclosed, including, without limitation, disclosing to Users that Customer will be providing such User Data to KEYper for processing as well as User rights in relation thereto. Customer shall ensure that it has appropriate and required legal basis for the processing of User Data in accordance with the Agreement and for Customer’s intended purposes as may be necessary under applicable law. In connection with the Service, Customer shall only use or process User Data, pursuant to all applicable laws, rules, regulations and orders of any governmental authority having relevant jurisdiction, including, without limitation, the applicable provisions of any data protection laws, including the CCPA or the GDPR. Except as permitted under applicable laws, rules, regulations and orders of any governmental authority having relevant jurisdiction, including, without limitation the CCPA or the GDPR, , Customer shall not share, distribute, transfer, publish, sell, trade, give away, or in any other way use, disseminate or disclose Personal Data received from any Users.
- KEYper Data Privacy. KEYper shall only use or process Personal Data for the Contracted Business Purposes.
- Data Processing. Customer shall promptly inform KEYper if the GDPR or the CCPA is applicable to KEYper’s processing of personal data hereunder, in which case – and only in such a case – the provisions set forth in Clauses 4 – 6.8 below shall apply.
- Processing Instructions. Customer shall, in a timely manner, provide KEYper with lawful and documented instructions regarding KEYper’s processing of Personal Data on Customer’s behalf and act as the point of contact for Users in relation to such processing of Personal Data.
- KEYper will only collect, use, retain, or disclose Personal Data in accordance with Customer’s instructions (where the GDPR applies) or for the Contracted Business Purposes, and in accordance with its Data Privacy Statement. KEYper will not collect, use, retain, disclose, sell, or otherwise make Personal Data available for KEYper’s own commercial purposes or in a way that does not comply with applicable data protection laws. If a law requires KEYper to disclose Personal Data for a purpose unrelated to the Contracted Business Purpose, KEYper must first inform Customer of the legal requirement and give Customer an opportunity to object or challenge the requirement, if reasonably practicable and unless the law prohibits such notice. KEYper will limit Personal Data collection, use, retention, and disclosure to activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another compatible operational purpose.
- Customer must inform KEYper of any erroneous, rectified, updated or deleted personal data subject to KEYper’s processing, immediately after it is brought to the attention of Customer. KEYper must promptly take reasonable steps to comply with any Customer request or instruction requiring KEYper to provide, amend, transfer, or delete the Personal Data, or to stop, mitigate, or remedy any unauthorized processing.
- To the extent permitted under applicable data protection laws, KEYper may aggregate, deidentify, or anonymize personal information so it no longer meets the Personal Data definition, and may use such aggregated, deidentified, or anonymized data for its own research and development purposes. KEYper will not attempt to or actually re-identify any previously aggregated, deidentified, or anonymized data and will contractually prohibit downstream data recipients from attempting to or actually re-identifying such data.
- KEYper will reasonably cooperate and assist Customer with meeting Customer’s obligations under applicable data protection laws, including, if applicable, responding to requests for exercising any data subject’s rights under applicable data protection laws.
- Information Security. KEYper will implement and maintain commercially reasonable security measures designed to meet the following objectives: (i) ensure the security and confidentiality of Customer Content and User Data in the custody and under the control of KEYper; (ii) protect against unauthorized use or access to such Customer Content and User Data, and (iii) protect against any anticipated threats or hazards to the security or integrity of such Customer Content or User Data. Customer acknowledges and agrees that KEYper may rely upon the security processes and measures utilized by KEYper’s cloud infrastructure providers. Each Party shall notify the other without undue delay upon becoming aware of a reach of security leading to the accidental or unlawful destruction, loss alteration, unauthorised disclosure or, or access to, Personal Data processed using Service.
- LIMITED WARRANTY AND DISCLAIMERS
- KEYper represents and warrants that KEYper has the right and power to enter into the Agreement and grant the licenses set forth herein.
- Hardware: Subject to the conditions and limitations of liability stated herein, KEYper warrants that the Hardware products will be free from material defects in materials and workmanship and will substantially conform to the applicable Documentation in effect as of the date of manufacture for a period of one (1) year from the date of shipment. No credits or refunds will be given for Hardware products that are returned incomplete or damaged. KEYper shall not be required to perform any warranty repairs of the Hardware at a specific site. Customer shall be responsible for removing and reinstalling all the parts or components of the Hardware returned to KEYper for repair under the warranty. Customer shall bear all risk of loss during the shipment of items and Hardware products returned to KEYper. Customer shall be solely responsible for obtaining insurance on any and all items and Hardware products that are returned to KEYper.
- For Customers outside of the United States, the above warranties shall be construed to limit the warranty to the minimum warranty required by law.
- R Subject to the conditions and limitations of liability set forth herein
KEYper’s sole and exclusive obligation and Customer’s sole and exclusive remedy for breach of the foregoing limited warranties applicable to the sale of the Hardware shall be that KEYper will either repair, replace or provide a reasonable workaround for the defective and/or nonconforming part of the Hardware after receiving written notice (such notice being received before the expiry of the warranty period) of the breach of warranty describing in reasonable detail the specific nature of the defect or non-conformity, or refund all amounts paid for such defective and/or non-conforming Hardware.
- Disclaimer of Warranties. Customer expressly acknowledges and agrees that the use of each of the Services is at Customer’s sole risk. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 4 ABOVE TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF ANY OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, WITHOUT DOWNTIME, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. THE ABOVE WARRANTIES TO NOT APPLY TO ANY DEFECTS, DAMAGES, FAILURES OR MALFUNCTIONS TO ANY PART OF THE HARDRWARE OR SERVICES RESULTING FROM (A) NEGLIGENCE, ABUSE, OR MISAPPLICATION (B) USE OF THE HARDWARE OR SERVICES OTHER THAN AS SPECIFIED IN THE DOCUMENTATION THEREOF OR OTHERWISE IN OTHER THAN ITS NORMAL AND CUSTOMARY MANNER (C) ANY ALTERATIONS, MODIFICATIONS OR ADAPTATIONS OF THE PRODUCTS PERFORMED BY ANYONE OTHER THAN LICENSOR, OR ANY UNAUTHORIZED COMBINATION OR INTERFACING OF THE HARDWARE WITH OTHER HARDWARE OR SOFTWARE. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE PERFORMANCE OR THE RESULTS OF THE USE OF THE SERVICES OR DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. The foregoing limitations and exclusions apply to the extent permitted by applicable law. If applicable law limits the application of the provisions of this Section 7, KEYper’s liability will be limited to the maximum extent permissible.
- In the event that KEYper anticipates that Hardware, Embedded Software or Service may become subject to a claim or does become subject to a claim by a third party that Hardware, Embedded Software or Service infringes a third party copyright, patent or other intellectual property right, KEYper shall have at its option and expense the right to (a) obtain for Customer a license to continue using such Hardware, Embedded Software or Service; (b) substitute the Hardware, Embedded Software or Service with other substantially similar software product or hardware; or (c) terminate the license for the infringing portion of the Hardware, Embedded Software or Service. THIS SECTION 8 SETS FORTH KEYPER’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, INCLUDING A BREACH OF ANY REPRESENTATION OR WARRANTY RELATED THERETO.
- Customer shall indemnify, and hold KEYper, its Affiliates, officers, directors, third party licensors, and employees, harmless from and against any and all claims, damages, losses, costs or other expenses (including reasonable attorneys’ fees) that arise directly or indirectly out of (a) alterations or modifications to the Hardware, Embedded Software or Service made by KEYper (b) combinations of using the Hardware, Embedded Software or Service with products, services, or materials not provided by KEYper where the infringement would not have occurred but for Customer’s combination of such products, services, or materials;; (c) Customer’s willful misconduct or unauthorized use of Service; (d) any violation by Customer of third party rights including but not limited to privacy and data protection rights or breach of Section 7.1; or (e) from Customer’s use or submission of User Data and/or Customer Content through Service.
- LIMITATION OF LIABILITY
- IN NO EVENT SHALL KEYper OR ITS AFFILIATES OR THIRD PARTY LicensorS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF Hardware, Embedded Software or Service OR SUPPORT PROVIDED HEREUNDER (INCLUDING WITHOUT LIMITATION DAMAGES FOR loss profits or revenues, costs of delay, business interruption, loss of use of Product or other Product software, system, or facility, loss of data or information, loss of productivity, interest charges, costs of substitute products, software, systems, or services, cost of purchases or replacement power, downtime costs, damage to property or person, and incidental, special, exemplary, or consequential damages, REGARDLESS OF WHETHER THE CLAIM GIVING RISE TO SUCH DAMAGES IS BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, AND THE LIKE), EVEN IF KEYper OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL KEYper’S AGGREGATE LIABILITY FOR DAMAGES OR LOSSES (whether in one instance or a series of instances) UNDER THE AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER PURSUANT TO APPLICABLE QUOTE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM. In those jurisdictions that do not allow the exclusion or limitation of damages, KEYper’s liability shall be limited or excluded to the maximum extent allowed within those jurisdictions.
- Term and Termination
- The term of Agreement shall commence on the Effective Date of the Agreement and shall remain in force during the Initial Subscription Period and any Renewal Subscription Period or until terminated in accordance with the terms hereof (“License Term”). Following expiry of the Initial Subscription Period, and any Renewal Subscription Period, the Subscription period will automatically renew at KEYper’s prices in effect at the time of such renewal, for an additional period of 12 months years at a time (each a “Renewal Subscription Period”) following the end of the Initial Subscription Period and any subsequent Renewal Subscription Period, unless terminated in writing by either Party by giving three months’ notice of such party’s intent not to renew prior to the end of the Initial Subscription period or the then applicable Renewal Subscription Period. Any such notice of intent not to renew shall be given in accordance with the terms hereof. No such automatic renewal shall occur at any time following the termination of the Agreement in accordance with the terms hereof. KEYper shall not be obligated to provide the Services described in any Agreement during any such Initial Subscription Period or Renewal Subscription Period unless and until it has received full payment for such Services with respect to such Initial Subscription Period or Renewal Subscription Period.
- Termination of Agreement by KEYper. KEYper may terminate the Agreement by written notice to Customer in the event that (i) Customer fails to make any payment required within ten (10) days after receiving a written notice that such payment is past due, provided that such failure does not relate to a good faith dispute between the parties regarding the amount due; (ii) Customer breaches any of its obligations under the Agreement (including without limitation, with respect to Customer, a breach of any provision of Section 2.4 hereof by an User) or any Agreement, and has been given written notice of such default, and has not corrected the default within thirty (30) days of the date of the notice or such longer period as KEYper agrees is reasonable; or (iii) immediately upon registered letter if Customer commences bankruptcy proceedings, makes composition with its creditors, is subject to the appointment of an administrator or is subject to any other similar proceedings or otherwise proceedings that have the same or similar effects or if the other Party could reasonably be deemed to be insolvent. Without limiting KEYper’s other rights in the Agreement, if KEYper terminates the Agreement pursuant to this Section, Customer will pay any unpaid fees covering the remainder of the License Term.
- Termination of Agreement by Customer. Customer may terminate the Agreement by written notice in the event that KEYper materially breaches any of its obligations under the Agreement, has been given written notice of such default, and has not corrected the default within thirty (30) days of the date of the notice. Expiration or termination of the Agreement will not terminate any outstanding Agreements and the terms of the Agreement shall survive any termination with respect to such Agreements for the duration of the term of such Agreements.
- Effect of Termination. Upon any expiration or termination of the Agreement, all rights granted to Customer in relation to the Services will immediately cease and Customer shall cease using Service, or if Customer should otherwise discontinue using Service, Customer shall destroy all copies of the Documentation and any related materials in any form. All fees or charges then due and payable, or to become due and payable in the future based upon Services already rendered, shall be immediately due and payable to KEYper and Customer’s obligations to pay such amounts shall survive the termination of the Agreement or any addenda hereto. In addition, Customer’s obligations under Sections 2.4, 5, 6, 7.1, 9, 10 and 11 shall survive any termination of the Agreement.
- Handling of Customer Content in the event of Termination. Upon request by Customer made within 30 days after the effective date of termination or expiration of the Agreement, KEYper will make Customer Content available to Customer for export or download. After such 30-day period, KEYper will have no obligation to maintain or provide any Customer Content.
- Customer agrees to maintain and protect all Confidential Information and keep it confidential using the same degree of care that it exercises with respect to its own information of like importance but in no event less than reasonable care, and may use it only for the purposes for which it was provided under the Agreement. Except as expressly provided in the Agreement, Confidential Information may be disclosed only to Customer’s employees or contractors obligated to the Customer under similar confidentiality restrictions and only for the purposes for which it was provided. These obligations do not apply to information which: (a) is rightfully obtained by Customer without breach of any obligation to maintain its confidentiality; (b) is or becomes known to the public through no act or omission of the Customer; (c) Customer develops independently without using Confidential Information of KEYper; or (d) only to the extent and for the purpose of disclosing such Confidential Information in response to a valid court or governmental order, and if the Customer has given the KEYper prior written notice and provides reasonable assistance so as to afford it the opportunity to object or obtain a suitable protective order.
- Remedy for Breach. Because of the unique nature of the Confidential Information, each Party agrees that the disclosing Party may suffer irreparable harm in the event the recipient fails to comply with its confidentiality obligations under the Agreement, and that monetary damages will be inadequate to compensate the disclosing Party for such breach. Accordingly, the recipient agrees that the disclosing Party will, in addition to any other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce such confidentiality obligations.
- Compliance with Law. Each party shall comply with all applicable laws, ordinances, rules and regulations, and shall obtain any and all permits, licenses, authorization, and/or certificates that may be required in any jurisdiction or any regulatory or administrative agency in connection with the sale, use and/or operations of Service. Without limiting the generality of the foregoing, Customer shall comply with all laws and regulations on anti-corruption, sanctions and export control, data protection, international communications, and the export of technical or personal data.
- Export and Import Controls. The Service, Hardware, or other technology KEYper makes available hereunder may be subject to export laws and regulations of the European Union, the United States and other jurisdictions. Customer agrees to comply strictly with all export laws and regulations. Customer shall not permit Users to access or use any Service or Customer Content in or via an embargoed country, which would prohibit such access or in any violation of any export law or regulation. Proscribed countries are set forth in the applicable export regulations and are subject to change without notice, and Customer must comply with the list as it exists in fact. Customer certifies, represents, warrants and undertakes that Customer is not targeted under the sanctions or export controls of the United Nations, the United States, the European Union or any other relevant government, or are listed on the U.S. Department of Commerce’s Denied Persons List or affiliated lists, on the U.S. Department of Treasury’s Specially Designated Nationals List or any list maintained by the United Nations, the European Union or other relevant government.
- Independent Contractor. Nothing in the Agreement is intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither Party may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor. Except as otherwise set forth herein, each Party shall bear its own costs and expenses in performing the Agreement.
- S. Government Rights. If Customer is a U.S. Government agency and subject to the regulations of FARS or DFARS, the Service are provided with “Restricted Rights.” Use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable (and the successor clauses to any of the foregoing). The contractor/manufacturer is Marcon International, Inc. Subject to any applicable regulations set out in the FAR or DFARS (and any superseding regulations), Service are provided with the commercial license rights and restrictions described elsewhere in the Agreement. For Department of Defense agencies, the restrictions set forth in the “Technical Data – Commercial items” clause at DFARS 252.227-7015 (Nov 1995) shall also apply.
- Governing Law and Venue. This Agreement, and all disputes, claims, or causes of action (whether in contract, tort, statute, or constitution) that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution, or performance of this Agreement (including any claim or cause of action arising out of or related to any representation or warranty made in connection with this Agreement) (collectively, the “Agreement Dispute”), shall be governed by the laws of the State of Texas, without giving effect to its provisions of choice of law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement or any order issued hereunder. Any action, proceeding, mediation, or arbitration shall be brought in the State of Texas, County of Dallas. The parties hereby irrevocably submit to the subject matter and personal jurisdiction of such courts, and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
- Dispute Resolution. In the event of an Agreement Dispute, the party claiming such Agreement Dispute shall give written notice to the other party with a description of the Agreement Dispute (a “Dispute Notice”) to the other party. Following delivery of a Dispute Notice, the parties shall negotiate in good faith to settle such Agreement Dispute. If, within forty-five (45) calendar days (or such longer period as may be agreed in writing between the Parties) after receipt of a Dispute Notice, the Parties have not succeeded in resolving of the Agreement Dispute, the Parties agree to submit the Agreement Dispute, at the earliest possible date, to mediation conducted in accordance with the Commercial Mediation Rules of the American Arbitration Association (“AAA”), and to bear equally the costs of the mediation. The parties agree to participate in good faith in the mediation and negotiations related thereto, for a period of thirty (30) days, or such longer period as they may mutually agree, following the initial mediation session (the “Mediation Period”). If the Agreement Dispute has not been resolved for any reason after the Mediation Period, then such Agreement Dispute shall be determined exclusively by arbitration before and in accordance with the then-existing Commercial Arbitration Rules of the AAA, except as modified herein (the “Rules”). There shall be one arbitrator mutually agreed upon by both parties within twenty (20) days after the Mediation Period. If an arbitrator cannot be timely appointed by the parties, AAA shall appoint an arbitrator in accordance with the Rules, and in any such procedure, each Party shall be given two strike, excluding strikes for cause. The arbitrators shall apply the substantive laws of the State of Texas, without regard to any choice of law principles thereof that would mandate the application of the laws of another jurisdiction. Any award rendered by the arbitrators shall be final and binding on the parties. The arbitrators shall be entitled, if appropriate, to award any remedy in such proceedings, including monetary damages, specific performance, and all other forms of legal and equitable relief; provided, however, the arbitrators shall not be entitled to award indirect, consequential, punitive, exemplary, treble, or any other form of non-compensatory damages, excluding attorneys’ fees. Any arbitration proceeding shall be concluded in a maximum of six (6) months from the commencement of the arbitration, unless agreed to otherwise by the parties in writing.
- The Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that neither party shall assign any of its rights, obligations, or privileges (by operation of law or otherwise) hereunder without the prior written consent of the other party. Notwithstanding the foregoing, however, (i) KEYper may assign the Agreement to a successor in interest (or its equivalent) of all or substantially all of its relevant assets, whether by sale, merger, or otherwise; (ii) KEYper may assign the Agreement to any of its Affiliates; and (iii) KEYper may use subcontractors in the performance of its obligations hereunder. Any attempted assignment in violation of what is set forth above in this Section 12.7 will be void. If subcontractors are used by KEYper for the processing of Personal Data on Customer’s behalf, the obligations set forth in these Terms with respect to Personal Data shall be imposed on those subcontractors, and KEYper shall inform Customer of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes, in each case if required under applicable data protection laws,
- Delays and Force Majeure. KEYper shall notify Customer as soon as reasonably possible of any delays in the scheduled delivery, and Customer agrees that KEYper cannot be held liable in any manner whatsoever for such delays. Neither party shall be liable for failure to fulfill its obligations under the Agreement or any Agreement issued hereunder or for delays in delivery due to causes beyond its reasonable control, including but not limited to act of God, acts or omissions of the other party, man-made or natural disasters, epidemics, riot, war, Government intervention, material shortages, strikes, delays in transportation or inability to obtain labor or materials through its regular sources. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
- Notices concerning the Agreement (other than routine communications) shall be in writing and shall be given or made by means of certified or registered mail, express mail or other overnight delivery service, or hand delivery, proper postage or other charges paid and addressed or directed to the respective parties as follows.
At Customer’s address shown on the Agreement.
Marcon International Inc.
5679 Harrisburg Industrial Park Dr, Harrisburg, NC 28075,United States of America
Notices sent by certified or registered mail shall be deemed to have been received by a Party three (3) Business Days after the notice was sent.
- Severability. If any provision of an Agreement shall be held by a court of competent jurisdiction to be wholly or partly invalid or contrary to law or public policy, the validity of the Agreement as a whole shall not be affected and the remaining provisions shall remain in full force and effect. To the extent that such invalidity materially affects a Party’s benefit from, or performance under, the Agreement, it shall be reasonably amended.
- Terms and conditions which by their nature extend beyond the License Term shall survive the termination or expiry of the Agreement.
- No term or provision hereof shall be deemed waived and no breach consented to or excused, unless such waiver, consent or excuse shall be in writing and signed by the party claimed to have waived or consented. Should either party consent, waive, or excuse a breach by the other party, such shall not constitute consent to, waiver of, or excuse of any other different or subsequent breach whether or not of the same kind as the original breach. Notwithstanding the foregoing, provisions on complaints and limitation periods shall apply.
- Conflicting Terms; Entire Agreement. The Agreement including all Agreements and schedules constitute the entire understanding and agreement between the parties hereto with respect to the subject matter of the Agreement and merges and supersedes all prior communications, understanding and agreements, written or oral, and no amendments shall become effective without written agreement signed by the parties hereto. In the event there is a conflict between the terms of the Agreement and the Agreements or schedules, the terms and conditions of the Agreement shall control to the extent of the conflict