KITE LICENSE AGREEMENT
THE KITE LICENSE AGREEMENT (THIS "AGREEMENT") GOVERNS YOUR ACCESS TO AND USE OF KITE'S SOFTWARE-AS-A-SERVICE PLATFORM (THE "PLATFORM") AND ANY USER DOCUMENTATION RELATED TO THE PLATFORM (THE "DOCUMENTATION").
BY ACCESSING THE PLATFORM (THE DATE YOU FIRST ACCESS THE PLATFORM, THE "EFFECTIVE DATE"): (I) YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT; AND (II) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF APPLICABLE, TO ACT ON BEHALF OF AND BIND THE ENTITY YOU REPRESENT.
THOUGH YOUR ACCESS AND USE OF THE PLATFORM AND DOCUMENTATION IS GOVERNED BY THE AGREEMENT EFFECTIVE AT THE TIME, KITE MAY REVISE AND UPDATE THIS AGREEMENT FROM TIME TO TIME IN ITS SOLE DISCRETION. IF KITE MAKES MATERIAL CHANGES TO THIS AGREEMENT, IT WILL NOTIFY YOU BY EMAIL PRIOR TO THE EFFECTIVE DATE OF THE CHANGES, WHICH SUCH DATE WILL BE DEEMED THE EFFECTIVE DATE FOR PURPOSES OF THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE YOU’RE YOUR CONTINUED ACCESS OR USE OF THE PLATFORM AND/OR THE DOCUMENTATION AFTER KITE'S MATERIAL CHANGE TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE CHANGED TERMS.
As used in this Agreement, "KITE" refers to KITE Solutions, Inc., a Delaware corporation with offices at 650 California Street FL 7, San Francisco, CA 94108, and "you," "your," or "Customer" refers to you as an individual or the entity on whose behalf you have entered into this Agreement
- "Affiliate" means any entity that, before or after the Effective Date, controls, is controlled by, or under common control with, a party, where “control” means to own, or the ownership of, the power to direct or manage the affairs of the party or entity through voting power or by contract, but only for as long as such control or common control exists.
- "Authorized User" means each individual, including any employee or contractor of Customer and/or its Affiliates who (a) has been authorized by KITE to access and use the Platform and (b) has been assigned a unique username and password for accessing and using the Platform.
- "Customer Content" means all information, data, text, content, and material that Customer or Authorized Users enter into, uploads to, posts on, provides to, or otherwise transmits to the Platform.
- "Intellectual Property Rights" or "IP Rights" means (a) rights in works of authorship, including copyrights, moral rights, mask works and copyright applications and registrations, (b) trademark and trade name rights and similar rights, (c) trade secret rights and (d) patent and industrial property rights and rights in patent applications, renewals, extensions, combinations, divisions and reissues.
- "KITE Content" means any information collected by KITE via the Platform by referencing Customer Content or otherwise derived by processing Customer Content, including without limitation any inferences, insights, or other predictive information or data that is sufficiently different from Customer Content such that Customer Content cannot be reverse engineered or otherwise identified from analysis or further processing of KITE Content; provided, however, that KITE Content excludes the Reports.
- "Reports" means the reports (a) made available by KITE to Customer and/or (b) generated by Customer, in each of (a) and (b) via the Platform.
Fees. Customer will pay to KITE the fees, if any, disclosed and billed to Customer during signup for the Platform (the "Fees"). All Fees are non-refundable and non-cancelable. In addition to KITE's suspension or revocation rights in this Agreement, KITE may suspend or revoke Customer's access to the Platform if Customer is ten (10) or more business days past due on Fees.
- License Grant. Subject to Customer's compliance with this Agreement, including, if applicable, Customer's timely payment of all Fees (as such term is defined in Section 3), KITE hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license: during the Term (as such term is defined in Section 7(a)), to access and use the Platform, KITE Content, and Documentation; and perpetually, to reproduce, distribute, perform, and display the Reports, each of (i) and (ii) in connection with Customer's internal (i.e., non-commercial resale) business operations on its systems, networks and devices and in accordance with the limitations on Authorized Users specified by KITE. KITE may modify the Platform from time to time, so long as such modification(s) do not materially reduce the Platform's performance or capabilities. KITE will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer, any Authorized User, or any other third party may incur as a result of modifications to the Platform in accordance with this Section 2(a).
- Restrictions. Customer shall not, and shall not authorize any Authorized User or third party to, directly or indirectly: (i) copy, modify, or create derivative works of the Platform, KITE Content, Reports, or the Documentation (collectively, the "KITE Materials"), in whole or in part; (ii) rent, repackage, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the KITE Materials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code, object code, or underlying structure, ideas, or algorithms of the Platform, in whole or in part; (iv) remove any proprietary notices from the KITE Materials; (v) use the KITE Materials 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 laws, rules, or regulations (including, without limitation, applicable data privacy laws, regulations, and guidance) (collectively, "Applicable Law"); (vi) monitor the availability, performance, or functionality of the Platform or for any similar benchmarking or competitive purposes; (vii) interfere with or disable any features, functionality, or security controls of the Platform or otherwise circumvent any protection mechanisms for the Platform; (viii) create any software or application that replicates or competes with the Platform; (ix) combine or integrate the KITE Materials with any software, technology, services, or materials not authorized by KITE; (x) reveal Customer's access key or other credentials (e.g., username and password) to the Platform ("Access Key") to any third party except when consented to in writing by KITE; or (xi) otherwise access or use the KITE Materials except as expressly authorized in this Agreement. Customer is solely responsible for maintaining the confidentiality and security of its Access Key. Customer shall immediately notify KITE of any security breach of its Access Key and will be fully liable and indemnify KITE for any Losses (as defined in Section 8) that KITE incurs as a result of unauthorized use of Customer's Access Key.
- Suspension of Access. Notwithstanding anything to the contrary in this Agreement, KITE may temporarily suspend, or permanently revoke, Customer's access to any portion or all of the Platform if: (i) KITE reasonably determines that there is a threat or attack on the Platform; (ii) Customer's use of the Platform disrupts or poses a security risk to the Platform or to any other customer or vendor of KITE; (iii) Customer is using the Platform for fraudulent or illegal activities; or (iv) any vendor of KITE has suspended or terminated KITE's access to or use of any third-party services or products required to enable Customer to access the Platform (any such temporary suspension, a "Service Suspension" and any such revocation, a "Service Revocation"). KITE shall use commercially reasonable efforts to provide written notice of any Service Suspension or Service Revocation to Customer and, in cases of Service Suspensions, to provide updates regarding resumption of access to the Platform following any Service Suspension. In cases of Service Suspensions, KITE shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. KITE will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any third party may incur as a result of a Service Suspension or Service Revocation, and Customer shall not be entitled to any refunds of any Fees on account of any Service Suspension or Service Revocation.
- Customer Responsibilities. Customer is fully responsible and liable for all access and use of the KITE Materials resulting from access provided by KITE, whether such access or use is taken under Customer's Access Key, and all conclusions, decisions, and actions based on such use. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users in connection with their use of the KITE Materials, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer.
- Customer Content. Customer shall not, and shall ensure that its Authorized Users do not, upload any Customer Content to the Platform that: (i) contains any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable; (ii) promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; (iii) infringes any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person; (iv) violates the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under Applicable Law, or that otherwise may be in conflict with this Agreement; (v) is or would be likely to deceive or confuse any person; (vi) promotes or assists in any illegal activity; (vii) involve contests, sweepstakes, barter, advertising, or pyramid schemes; (viii) involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming"; or (ix) contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page). Customer is wholly responsible for Customer Content, and Customer assumes all risks associated with such Customer Content, including KITE's or any third party's reliance on its quality, accuracy, reliability, appropriateness, or any disclosure by Customer of information in Customer Content that makes anyone personally identifiable
- Confidential Information. "Confidential Information" means any information previously or hereafter disclosed by or on behalf of one party (the "Disclosing Party") to the other party (the "Receiving Party"), either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, business plans, customer data, customer lists, customer names, designs, documents, drawings, engineering information, financial analysis, hardware configuration information, the Disclosing Party's Intellectual Property, inventions, market information, marketing plans, processes, products, product plans, research, services, specifications, software, source code, trade secrets or any other information that the Disclosing Party identifies as "confidential," "proprietary" or some similar designation or that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information also includes information disclosed to the Disclosing Party by third parties and all notes, reports, analyses, compilations, studies and other materials prepared by the Receiving Party or its representatives (in whatever form maintained, whether documentary, electronic or otherwise) containing, reflecting or based upon, in whole or in part, any such information or reflecting or based upon, in whole or in part, any such information or reflecting such party's review or view of the Disclosing Party or the Confidential Information.
- Exclusions. Confidential Information shall not, however, include any information which (i) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known and made generally available in the public domain, (ii) or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, which source is not known by the Receiving Party after reasonable investigation to be subject to a contractual, legal or fiduciary obligation prohibiting such disclosure, in each case as evidenced by the written records of the Receiving Party, or (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party's possession.
- Restrictions. The Receiving Party agrees that it shall use the Disclosing Party's Confidential Information solely in accordance with this Agreement and shall maintain the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care that it uses to protect its own Confidential Information, but in any event shall use at least commercially reasonable measures to protect the confidentiality of and avoid disclosure of the Disclosing Party's Confidential Information. The Receiving Party will keep the Disclosing Party's Confidential Information confidential and will not disclose any of the Disclosing Party's Confidential Information to employees or to third parties; provided, however, that the Receiving Party may disclose such Confidential Information to its directors, officers, or employees who need to know such Confidential Information and have agreed to abide by or are otherwise subject to non-disclosure terms at least as protective of the Disclosing Party's Confidential Information as those set forth herein. The Receiving Party also agrees to only make such copies of Confidential Information as are necessary to evaluate the Platform. The Receiving Party will reproduce the Disclosing Party’s proprietary rights and confidentiality notices on any such authorized copies in the same manner in which such notices were set forth in or on the original. The Receiving Party will promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party's Confidential Information.
- Disclosures Required by Applicable Law or Court Order. In the event the Receiving Party is required by Applicable Law or a valid and effective subpoena or order issued by either a court of competent jurisdiction or a governmental body to disclose any of the Disclosing Party's Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing of the existence, terms, and circumstances surrounding such required disclosure so that the Disclosing Party may seek a protective order, or have the Receiving Party seek such protective order on its behalf, or other appropriate relief from the proper authority. The Receiving Party will cooperate with the Disclosing Party in seeking such order or other relief. If the Receiving Party is nonetheless required to disclose the Disclosing Party's Confidential Information, it will furnish only that portion of the Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that such Confidential Information will be treated confidentially to the extent possible.
- Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by the Disclosing Party to the Receiving Party and all copies thereof shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party (or, in the cases of notes or abstracts, destroyed or permanently deleted) upon the earlier of (i) the Disclosing Party's written request and (ii) termination or expiration of this Agreement; provided, however, that nothing contained herein shall require the destruction, deletion or modification of any backup electronic media made pursuant to archival processes in the ordinary course of business; provided, further, that such backup tapes or other archived media shall only be accessible by information technology personnel and shall not be accessed or used for any purpose by either party other than as permitted hereunder.
Disclaimer of Warranties. THE KITE MATERIALS ARE PROVIDED “AS IS” AND KITE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KITE 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. KITE MAKES NO WARRANTY OF ANY KIND THAT THE KITE MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Term and Termination.
- KITE Materials. Customer acknowledges that, as between KITE and Customer, KITE (or its licensors, as applicable) owns all right, title and interest in and to the KITE Materials and all data and all Intellectual Property therein.
- Feedback. If Customer or any of its Authorized Users submits, orally or in writing, suggestions or recommended changes to the Platform, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), KITE is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to KITE, on Customer's behalf and on behalf of its Authorized Users and/or agents, all right, title, and interest in, and KITE is free to use, without any attribution or compensation to any party, any Intellectual Property contained in the Feedback, for any purpose whatsoever, although KITE is not required to use any Feedback.
- Customer Content. Notwithstanding Section 5(a), KITE acknowledges that, as between KITE and Customer, Customer owns all right, title and interest in and to the Customer Content and all Intellectual Property therein. Customer hereby grants to KITE during the Term a non-exclusive, fully paid up, royalty-free, worldwide right and license to access, use, modify, distribute, reproduce, create derivative works of, and/or otherwise exploit such Customer Content in connection with KITE's performance of this Agreement. Customer represents and warrants that all Customer Content has been collected in compliance with all Applicable Law and that Customer owns, or otherwise has the right to disclose to KITE, all Customer Content.
Indemnification. Customer will indemnify, defend, and hold harmless KITE and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including attorneys’ fees) ("Losses") resulting from any claim, suit, action, or proceeding in connection with Customer's and/or any Authorized User's use of the KITE Materials. In the event KITE seeks indemnification or defense from Customer under this provision, KITE shall promptly notify Customer in writing of the claim(s) brought against KITE for which KITE seeks indemnification or defense; provided, however, that failure to promptly notify Customer of such claim(s) will not reduce or relieve Customer's indemnification obligations under this Section 8. KITE reserves the right, at its option and in its sole discretion, to assume full control of the defense of any claim(s) with legal counsel of KITE’s choice. Customer may not, without KITE's prior written consent, enter into any third-party agreement, which would, in any manner, affect KITE’s rights, constitute an admission of fault by KITE or bind KITE in any manner.
Limitation of Liability. IN NO EVENT WILL KITE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (V) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER KITE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL KITE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE FEES.
- Term. This Agreement will begin on the Effective Date and continue until one party terminates this Agreement pursuant to this Section 7 (the "Term").
- Termination by Customer. Customer may terminate this Agreement by closing Customer's (and each Authorized Users') account and discontinuing use of the KITE Materials.
- Termination by KITE. KITE may, on notice to Customer, close Customer's (and each Authorized Users') account, suspend Customer's ability to access the KITE Materials and/or ban Customer from use of the KITE Materials for any or no reason, without liability of any kind.
- Termination for Breach. In addition to the rights above, either party may terminate this Agreement on the other's material breach, if such material breach remains uncured for thirty (30) days after the breaching party's receipt of notification thereof from the non-breaching party.
- Effects of Termination. Upon expiration or earlier termination of this Agreement, the license granted under Section 2(a) will also terminate and Customer will cease using and delete, destroy, or return all copies of the KITE Materials and, if required by KITE, certify in writing to KITE that such KITE Materials have been deleted or destroyed. This Section 7(e) and Sections 1, 2(b) through (e), 3, 4, 5, 6, 8, 9, and 10 will survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the termination or expiration of this Agreement.
NOTHING IN THIS SECTION WILL LIMIT CUSTOMER’S OBLIGATION TO PAY FEES PROPERLY DUE AND PAYABLE UNDER THIS AGREEMENT.
- Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, whether written or oral, with respect to the subject matter of this Agreement.
- Publicity. Neither party shall issue a press release or other public statement regarding the relationship of the parties or this Agreement without the prior written consent of the other party; provided, however, that KITE may identify Customer and use Customer's name, logo, and/or other identifying indicia of Customer on KITE's website or other promotional or marketing materials identifying Customer as a customer of KITE.
- Notices. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic mail, facsimile, delivered by overnight delivery service, mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed to the party's address as listed in this Agreement. If notice is given in person or by courier, it shall be effective upon receipt; if notice is given by confirmed email or facsimile during normal business hours of recipient, it shall be effective upon receipt (or the next business day if after normal business hours); if notice is given by overnight delivery service, it shall be effective two (2) business days after deposit with the delivery service; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.
- Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the state of California, without regard to its choice or conflict of laws provisions.
- No Third-Party Beneficiaries. Nothing herein is intended or shall be construed to confer upon any person or entity other than the parties and their successors or assigns, any rights or remedies under or by reason of this Agreement.
- No Assignment. Neither this Agreement, nor any rights or obligations hereunder may be assigned, delegated or conveyed by either party without the prior written consent of the other party.
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