These Terms of Service (“Agreement”) apply to the services provided by Knostic Inc. (“Knostic”) DBA as Kirin, to customers who signed a written statement of work with Knostic (“Customer” and “SOW”, respectively):
Services and Solutions. Knostic’s offerings are as set forth in the applicable SOW and may include Services, Solutions or both.
Services. Knostic will provide Customer with the services set forth in the SOW (“Services”). Customer undertakes to provide Knostic with access to its systems as set forth in the SOW, in order to enable Knostic to provide the Services; Customer acknowledges and consents to Knostic making attempts to retrieve information from Customer’s Assessed Accounts without authorization.
Solutions. Knostic hereby grants Customer a non-exclusive, non-sublicensable, non-assignable right to access and use the Knostic solutions identified in the SOW (“Solutions”), during the term of such SOW and solely for the purpose for which they were designed. Customer may not exceed the number of instances or devices for which the Solution(s) are licensed, as specified in the SOW.
Restrictions. Customer may not: (i) publish any benchmarking regarding the Services or Solutions without Knostic’s approval; (ii) use the Services or Solutions for competitive analysis or for development of any competing offerings; or (iii) allow the Solution or Deliverables or any information regarding the Services to be shipped, transferred, or exported in any manner that is prohibited by law, including without limitation, to sell, distribute, download or export any of the foregoing: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Lebanon or Syria or the following regions of Ukraine: Donetsk People’s Republic, Luhansk People’s Republic and Crimea Region, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. or Israeli government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (d) otherwise in violation of any export or import restrictions, laws or regulations of the U.S. or Israel or any foreign agency or authority; Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
Warranties and Representations. Each party hereby warrants and represents that it is authorized to enter into this Agreement. Customer warrants and represents that: (i) it is authorized to use the Solutions on its accounts, systems and data and in respect of the Services, provide access to the Assessed Account and the Customer Content to Knostic and has obtained all required permits, consents and authorizations in respect thereof or otherwise established another valid legal basis for processing such data; and (ii) no sensitive data that is protected under a sector specific or special legislation or regulation and requires unique treatment (such as protected health information or credit, debit or other payment card data) will be included in the Customer Data or disclosed herein to Knostic. “Customer Data” means the content and data provided by the Customer or obtained from the Assessed Accounts.
Payment. In consideration for the Services Customer shall pay Knostic the fees set forth in the SOW. The fees are exclusive of sales tax or other taxes, which will be borne by Customer (except for taxes on Knostic’s income). Knostic may increase any subscription fees by providing thirty (30) days’ notice prior to the next subscription term; such change shall not affect any then occurring subscription term. Without prejudice to its other remedies, Knostic shall have the right to charge interest on any overdue invoices at the rate of 1½% per month (or the maximum rate permitted under applicable law, if lower) from the date when payment of the invoice becomes due for payment up to and including the date of actual payment.
Confidential Information; Personal Information. During the term of the Agreement each party may have access to certain non-public or proprietary information or materials of the other party (the “Recipient” and the “Discloser”, respectively), whether in tangible or intangible form (“Confidential Information”). Without derogating from the foregoing, all software, prompts, methods and technology used to provide the Services shall be deemed as Knostic’s Confidential Information and the Customer Content shall be deemed as Customer’s Confidential Information. Confidential Information will not include information or material which the Recipient can demonstrate: (a) was in the public domain at the time of disclosure by Discloser to the Recipient hereunder; and/or (b) became part of the public domain after disclosure by Discloser to the receiving party hereunder, through no fault of the Recipient; (c) was in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and was not subject to prior continuing obligations of confidentiality by the Recipient to Discloser; (d) was rightfully disclosed to the Recipient by a third party having the lawful right to do so; and/or (e) was independently and rightfully developed by the Recipient without (direct or indirect) use of, or reliance upon, Discloser’s Confidential Information. In the event that Recipient is required to disclose Confidential Information of Recipient pursuant to any law or governmental or judicial order, Recipient will promptly notify Discloser in writing of such law or order and reasonably cooperate with Discloser in opposing such disclosure or obtaining such other protective measures. In any event, such disclosure made pursuant to this paragraph will be made solely to the extent required by such law or order (as the case may be). Recipient will use Discloser’s Confidential Information solely for the purpose of performing its obligations and/or exercising its rights under this Agreement and will not disclose Confidential Information to any third party, except to its employees that have a need to know such information and that are bound by obligations at least as protective as provided herein. Recipient will take measures at a level at least as protective as those taken to protect its own confidential information of like nature, but in no event less than a reasonable level, to protect Discloser’s Confidential Information. Recipient will promptly notify Discloser in writing in the event of any actual or suspected unauthorized use or disclosure of any Discloser Confidential Information.
Privacy. Customer shall be deemed the controller of its Customer Content and Knostic a processor. Knostic shall process personal information in accordance with its privacy policy, available at: [please insert URL], as may be modified by Knostic from time to time.
Ownership.
Customer owns the Customer Data and Deliverables, except for templates and generic elements included in the Deliverables and the look and feel of and organization thereof. “Deliverables” shall mean any output specifically prepared for the Customer as part of the Services or from the Solutions, such as reports or insights based on Customer Data.
Notwithstanding any other provision to the contrary, the Solutions and the format and general features and template included in the Deliverables, Knostic Confidential Information and all improvements, enhancements and derivatives of any of the foregoing and all intellectual property rights thereto (“Knostic IPR”) are exclusively owned by Knostic and/or its licensors. Customer hereby grants Knostic an irrevocable, perpetual, royalty-free, sub-licensable, assignable license to use all feedback and suggestions provided to Knostic regarding the Solutions or Services, without any restrictions.
Indemnification.
Knostic shall defend Customer against any third-party claim or demand alleging that the Solutions or technology used to provide the Services infringe the intellectual property rights of a third party (for the purposes of this Section, “Claim”). Knostic shall indemnify and hold Customer harmless against any damage, loss or liability arising from a Claim and finally awarded in judgment or agreed in settlement.
Customer shall defend Knostic against any third-party claim or demand: (i) alleging that the transfer and use of Customer Content as contemplated herein violate or infringe any laws or the rights of any data subject, or (ii) alleging that the Customer was not authorized to grant Knostic access to the Assessed Accounts for providing the Services, (for the purposes of this Section, each of the foregoing shall be defined as a “Claim”). Customer shall indemnify and hold Knostic harmless against any damage, loss or liability arising from a Claim and finally awarded in judgment or agreed in settlement.
The indemnified party shall: notify the indemnifying party of a Claim, promptly after becoming aware thereof; render full control over the defense and settlement of the Claim to indemnifying party; and provide reasonable assistance in the defense at indemnifying party’s expense.
Disclaimer. EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE SERVICES, DELIVERABLES AND THE SOLUTIONS ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. KNOSTIC DOES NOT PROVIDE ANY WARRANTIES REGARDING THE RESULTS OF THE SERVICES OR USE OF THE SOLUTION OR DELIVERABLES OR THEIR USEFULNESS. KNOSTIC DOES NOT WARRANT OR REPRESENT THAT IT WILL SUCCESSFULLY, NOR SHALL IT BE RESPONSIBLE FOR, IDENTIFYING ANY OR ALL EXCESSIVE PERMISSIONS, SECURITY ISSUES OR VULNERABILITIES
Limitation of Liability. EXCEPT FOR CLAIMS ARISING FROM WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATION HEREIN, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE, UNDER ANY LEGAL THEORY, WHETHER CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR LOSS OF DATA. EXCEPT FOR CLAIMS ARISING FROM WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY AND THE INDEMNIFICATION OBLIGATION HEREIN, KNOSTIC’S OR ITS AFFILIATES’ AGGREGATE LIABILITY SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO KNOSTIC HEREIN DURING THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.
Publicity. Either party may use the other party’s name and logo on its website and other marketing materials and presentations in order to refer to this engagement.
Term and Termination.
This Agreement shall be in force for the term set forth in the SOW (“Term”).
Each party may terminate this Agreement in the event of breach by the other party upon a thirty (30) days’ notice, unless the breach is cured during the notice period.
Notwithstanding the termination or expiration of this Agreement, Sections 2-5 and 7-11, 12.3 and 13 shall survive and remain in effect in perpetuity. Upon termination or expiration of this Agreement Each party shall delete or return, at the other party’s discretion, all Confidential Information of the other party.
General. (i) This Agreement and the SOW is the entire agreement between Customer and Knostic in respect of the subject matter herein and this Agreement shall not be modified except as provided herein; (ii) This Agreement is governed by the laws of the State of Delaware, without regard to conflict of law provisions thereof. The Federal and State courts of Delaware, US shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts; (iii) Knostic may use the Customer Content and usage data for machine-learning and generation of aggregate data that does not identify Customer or any individual person, which may be used by Customer for operation, improvement, support and development of its technology, products and services; (iv) neither party may assign or otherwise transfer this Agreement or any of its rights and obligations under this Agreement to any third party without the prior written consent of the other party. Any unauthorized assignment will be void and of no force or effect. Notwithstanding the foregoing, either party may assign and transfer all of its rights and obligations herein in connection with a merger, consolidation, reorganization or sale of all or substantially all of its assets; (v) unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than Customer and Knostic, any rights, remedies or other benefits under or by reason of the Agreement; (vi) no failure or delay by either party in exercising any right, power or remedy shall operate as a waiver thereof. Waivers must be explicit and in writing.