SOFTWARE TERMS AND CONDITIONS
LAST UPDATED: December 2024
THESE SOFTWARE TERMS AND CONDITIONS (THIS “AGREEMENT”) GOVERNS THE USE OF THE K2VIEW SOFTWARE BY YOU (THE “CUSTOMER”). BY ACTIVATING THE K2VIEW SOFTWARE WITH THE USE OF THE PAK(s), CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ACCESS AND USE OF THE K2VIEW SOFTWARE IS SUBJECT TO THIS AGREEMENT. ANY SUCH ACTIVATION WILL CONSTITUTE SUCH ACCEPTANCE AND RESULT IN A BINDING AND LEGALLY ENFORCEABLE AGREEMENT BETWEEN CUSTOMER AND K2VIEW. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A CORPORATION, PARTNERSHIP, ASSOCIATION OR OTHER ENTITY OR GROUP, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO LEGALLY BIND SUCH ENTITY OR GROUP TO THIS AGREEMENT.
1. K2VIEW SOFTWARE
1.1 General; Grant of License. Subject to the terms and conditions contained in this Agreement and each applicable Order appended hereto, K2view hereby grants to Customer, as set forth in the applicable Order, and during the term specified in the Order, a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable license to use the K2view Software only in binary executable form, for the purpose(s) expressly designated in the Documentation and pursuant to such Order(s) (which may include, inter alia, limitations on the number of nodes, cores, storage size, data sources concurrent users and other measures).
1.2 Documentation. K2view will provide to Customer electronically or otherwise, at no extra charge, at least one copy in English of the Documentation for Customer’s use. Customer may make a reasonable number of copies of the Documentation for its internal use only.
1.3 Lawful Use. Customer hereby declares and agrees that it shall only use the K2view Software in a manner that complies with all applicable laws, including, but not limited to, applicable restrictions concerning the protection of privacy and intellectual property rights. The K2view Software should be installed, accessed or otherwise used (as applicable) solely in accordance with K2view Documentation. Customer further agrees to (a) limit access to and use of the K2view Software to its employees and contractors who require access solely for the purpose and the benefit of Customer and who are bound by terms no less restrictive and protective of K2view than those contained in this Agreement, and Customer shall remain liable for their compliance with this Agreement; (b) take all reasonable precautions to prevent unauthorized or improper use or disclosure of the K2view Software.
1.4 Audit. K2view shall have the right (but no more than once every twelve (12) months) to audit Customer solely to verify Customer's compliance with this Agreement. Customer shall cooperate with K2view in connection therewith including but not limited to (a) Customer generating a license report upon request of K2view, (b) on-site inspections and/or audits by K2view or an auditor on its behalf, to monitor, inspect and audit Customer's use of the K2view Software, during regular business hours and with reasonable advance notice to Customer. Customer acknowledges that the K2view Software may include password protection, anti-copying subroutines or other security measures designed to monitor the usage of the K2view Software for license management purposes.
2. SUPPORT & MAINTENANCE & CONSULTANCY
2.1 Support & Maintenance of K2view Software.
Subject to Customer's payment of the applicable license fees as detailed in the applicable Order, K2view will provide software Support and Maintenance Services and will make available to Customer any upgrades, or updates to the K2view Software, all in accordance with the terms and conditions set forth in the following link: Maintenance and Support;
2.2 Concierge Consultancy. K2view shall provide Customer with Concierge Consultancy services as detailed in Exhibit 1 attached herein.
2.3 Customer Cooperation. Customer acknowledges that K2view’s delivery and performance of the services hereunder, including all timelines, are subject to Customer’s reasonable cooperation with K2view including completion of all required training as detailed in K2view Academy. Without limiting the generality of the foregoing, Customer agrees:
2.3.1 to provide to K2view any reasonable information and support which K2view requires from Customer to perform its obligations under this Agreement and/or pursuant to an Order. K2view will not be responsible for any error, omission or damages caused by Customer’s failure to comply with any of the foregoing;
2.3.2 if required, to provide K2view access to the Customer System for the performance and use of the K2view Software as well as the Integration of the K2view Software with Customer System;
2.3.3 to promptly respond to all K2view queries or requests that are submitted to Customer from time to time in conjunction with the services.
2.4 Delivery. K2view shall deliver to Customer, upon execution of the relevant Order, product authorization keys (“PAK(s)”) for the K2view Software specified in the applicable Order (“Delivery”). Customer shall download the K2view Software electronically. Upon written request, K2view shall deliver to Customer one (1) set of media containing the executable, object code and electronic documentation for the K2view Software. Customer shall install the K2view Software only in accordance with the installation procedures contained in the Documentation.
2.5 Customer Data. Customer acknowledges that as part of the services provided hereunder K2view may process personal information for the benefit of the Customer. To the extent the Customer is subject to the EU General Data Protection Regulations (GDPR), the California Consumer Privacy Act (CCPA), the Parties shall execute a Data Processing Agreement, which will govern the data security and privacy terms and conditions related to such data processing activities.
3. FINANCIAL TERMS
3.1 K2view Software License Fees. In consideration of K2view’s licensing of the K2view Software, Customer agrees to pay K2view the fees as per the applicable Order. The license fees include consideration for the Support and Maintenance Services rendered by K2view.
3.2 Payment Terms. Unless expressly provided otherwise in the applicable Order, all fees due and payable under this Agreement shall be paid by Customer on Net 30 days from the date of an invoice therefor. All fees and other amounts due under this Agreement are stated in and are payable in the invoiced currency and shall be paid by wire transfer to K2view’s bank account detailed in the invoices and/or as may be designated by K2view from time to time. In addition, Customer shall reimburse K2view for all reasonable costs (including legal fees and expenses) in collecting unpaid amounts owed under this Agreement.
3.3 Taxes. Customer will be responsible for all applicable sales, use and excise taxes, and like charges imposed with respect to the K2view Software, Customer’s use thereof or any services provided by K2view, except for taxes based on the net income of K2view.
4. CONFIDENTIALITY
4.1 Non-disclosure and Non-use. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (a) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement; and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, consultants and contractors who need that access for purposes consistent with this Agreement and who are bound by obligations of confidentiality to the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. In the event that either Party is required by law or court order to disclose any of the Confidential Information, such Party shall, to the extent legally permitted, provide the other with prompt written notice of such request so that a protective order or other appropriate remedy may be sought and/or compliance with the terms of this Agreement may be waived. In the event that such protective order or other remedy is not obtained prior to the date a Party is legally required to comply with such request, or that the other Party waives compliance with the provisions hereof, or notice is not permitted, the Party receiving such protective order agrees to furnish only that portion of the Confidential Information which is legally required and to exercise reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
4.2 Exceptions. Notwithstanding anything in this Agreement to the contrary, Confidential Information need not be treated as such if it is or has become: (a) published or otherwise available to the public other than by a breach of this Agreement; (b) rightfully received by the Receiving Party from a third party without confidential limitation; (c) known to the Receiving Party prior to its first receipt of such Confidential Information from the Disclosing Party, as properly documented by the Receiving Party’s files; or (d) Independently developed by the Receiving Party without use of or reference to such Confidential Information, as properly documented by the Receiving Party’s files.
4.3 Return of Confidential Information. Upon the termination or expiration of this Agreement or if a Party so requests in writing, the Receiving Party shall: (i) discontinue use of the Confidential Information of the Disclosing Party and any embodiments thereof, and (ii) return to the Disclosing Party or, if requested by the Disclosing Party in writing, destroy, the original and all copies of any Confidential Information of the Disclosing Party and any summaries or analyses thereof or studies or notes thereon in the Receiving Party’s possession or control. Should the return or destruction of the Confidential Information be infeasible because such Confidential Information is stored pursuant to automated electronic back-up or archival systems used in the ordinary course of business or to comply with legal or regulatory requirements, the Receiving Party agrees to maintain the Confidential Information in accordance with the terms of this Agreement until it is destroyed in the ordinary course of business.
4.4 Publicity. Customer agrees that K2view may use the Customer’s name and logo on the K2view website and in its marketing materials, and list Customer’s name in a press release to represent that Customer is a customer of K2view.
5. OWNERSHIP
5.1 K2view Ownership.
5.1.1 K2view (its Affiliates or its licensors) solely and exclusively owns and shall own all right, title and interest, including all Intellectual Property, evidenced by or embodied in and/or attached/connected/related to the K2view Software (including, without limitation, related source code, object code and any associated Documentation), and any and all methodologies, know-how, processes, technologies, tools, devices, documentation or data and all derivatives, changes, enhancements, extensions, adaptations, additions, improvements and applications thereof, whether or not developed by K2view under this Agreement, whether in connection with the Support and Maintenance Services, Consultancy Services, associated with any Integration, or otherwise, in whole or in part.
5.1.2 For the avoidance of doubt, nothing shall restrict K2view from using any function, feature or element of the K2view Software for the purpose of providing the K2view Software or similar services, including without limitation, services substantially similar to the Support and Maintenance Services to any third party.
5.1.3 This Agreement does not convey to the Customer an interest in or to the K2view Software but only a limited right to use the K2view Software in accordance with the terms of this Agreement and as defined in the applicable Order.
5.2 Feedback. If the Customer provides K2view or its authorized third party agents any feedback data (e.g., questions, comments, suggestions or the like) regarding the K2view Software (collectively, “Feedback”), such Feedback shall be deemed to be non-confidential, and K2view shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into the K2view Software and/or any other of its current or future products or services, without Customer's approval or further compensation to Customer.
5.3 Anonymous Analytics. Subject to all applicable laws, K2view may collect, disclose, publish and use in any other manner any anonymous and non-identifiable information which is derived from the use of the K2view Software, in order to provide and improve its software and services and for any legitimate business purposes, provided that such information does not include the Customer’s Confidential Information or any Personal Data. The Company shall remain the exclusive owner of any such information.
5.4 Customer Ownership. Customer retains all right, title and interest in and to the Customer Materials, including any Intellectual Property rights appurtenant thereto.
5.5 Restrictions. During the Term and thereafter, except as specifically permitted herein, without the prior written consent of K2view, the Customer agrees not to, and may not permit or authorize others to, directly or indirectly: (i) modify or create derivative works based on any part of the K2view Software; (ii) sell, license, sub-license, lease, assign, rent, loan, distribute, reproduce, copy, publish, provide access to or otherwise make available the K2view Software or the Documentation to a third party (except as set forth herein); K2view(iv) disclose, publish or otherwise make publicly available any benchmark, performance or comparison tests of the K2view Software, or use their results; (v) disassemble, decompile, reverse engineer the K2view Software or attempt to discover the source code or underlying ideas or algorithms of the K2view Software, in whole or in part; (vi) delete or otherwise alter K2view's trademarks, logos, copyrights or other proprietary notices, if any, fixed or attached to the K2view Software or its documentation; (vii) ship, transfer, export or re-export the K2view Software into any country, or make available or use the K2view Software in any manner which is in violation of applicable export control laws or regulations. Without derogating from the above, Customer agrees that the K2view Software or underlying information or technology may not be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Crimea/Ukraine, Cuba, Iraq, Libya, North Korea, Lebanon, Iran, Syria, Sudan and any other country to which the U.S. has embargoed goods; (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders; or (c) to any entity in control of an entity which is located/registered in the counties in Section (a) above or falls under (b) above; (viii) infringe the Intellectual Property rights, privacy rights, publicity rights, proprietary rights or any other right of K2view or of any third party; (ix) circumvent, disable or otherwise interfere with security-related features of the K2view Software (including passwords) or features that enforce limitations on its use; (x) distribute or transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system), or unlawful, threatening, obscene or infringing material; and/or (xi) conduct any unlawful, unauthorized or immoral activity in connection with the K2view Software, or otherwise use the K2view Software or the Documentation except as expressly permitted under this Agreement. Customer agrees that if K2view determines or reasonably suspects that Customer is, directly or indirectly, engaging in any of the above-mentioned prohibited uses K2view may take immediate action, including termination of this Agreement, any Order and/or Customer’s right to use or access the K2view Software.
5.6 Open Source and Third-Party Software. The K2view Software may use or include third party software, files and components that are subject to open source and third-party license terms ("Third- Party Components"). These Third-Party Components are licensed to the Customer under the terms of their applicable open-source license conditions and/or copyright notices that can be found in the license file, the K2view Software or its Documentation as may be updated from time to time. If there is a conflict between the licensing terms of such Third-Party Components and this Agreement, the licensing terms of the Third-Party Components shall prevail in connection with the related Third-Party Components. Such Third-Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. A list of Third Party Components is available at https://download.k2view.com/index.php/s/KfxzMQW6aLOLqQK and may be updated from time to time. The licenses of certain Third-Party Components may require the provision of the source code of these Third-Party Components. With respect to any licenses of Third-Party Components that require the provision of the open source code of these Components, K2view will provide to the Customer, per its request, during a period set forth by each such license, a complete machine-readable copy of the corresponding source code, on a medium customarily used for software interchange. Under no circumstances shall the K2view Software or any portion thereof (except for the applicable Third-Party Components) be deemed to be "open source" or "publicly available" software.
6. INSURANCE
Insurance. K2view will maintain, during the Term, the sufficient insurance coverage evidence of which will be provided upon request.
7. WARRANTIES AND DISCLAIMER
7.1 Mutual Warranties. Each Party warrants to the other that: (i) each individual signing this Agreement and any applicable Order has full authority to bind such Party to this Agreement and such Order, (ii) such Party is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation, (iii) such Party has all requisite corporate power and authority to enter into this Agreement and the applicable Order, and (iv) it will comply with all applicable local, state and federal laws, ordinances, regulations and orders with respect to this Agreement.
7.2 K2view Warranties.
7.2.1 Non-infringement. K2view represents and warrants that the K2view Software does not infringe intellectual property rights of any third parties, when used in accordance with the terms set forth herein and the Documentation.
7.2.2 Documentation. K2view represents and warrants that the K2view Software will substantially conform to the Documentation.
7.2.3 Exclusions. The warranties set forth above shall be void if (i) the Customer modifies the K2view Software, (ii) Customer uses the K2view Software for purposes other than those as described in the Documentation or in the Agreement; (iii) the failure is due to misuse or negligence of a person other than K2view; (iv) the failure is due to the combination of the K2view Software with equipment or software not authorized or provided by K2view or otherwise approved by K2view in K2view Software’s Documentation; or (v) the Customer does not install or implement updates provided specifically by K2view to either prevent or cure the defect or non-conformity.
7.3 Customer Warranties. Customer represents and warrants that any personally identifiable information transmitted to K2view, whether or not such information is part of the Customer Materials, will be permissibly and lawfully so transmitted according to the published privacy policies and practices maintained by Customer, including, to the extent required by applicable privacy laws, the Customer has received any required consents from the individuals to whom such information pertains for the processing of their information by K2view as required to provide the license and services hereunder. Customer further warrants to K2view that it will comply with all applicable privacy and data security laws, regulations and industry best practices, in respect of its use of the K2view Software.
7.4 Disclaimer. EXCEPT AS SET FORTH IN THIS ARTICLE 8, THE K2VIEW SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES WHATSOEVER, INCLUDING WITHOUT LIMITATION WARRANTIES CONCERNING THE INSTALLATION, USE OR PERFORMANCE OF THE K2VIEW SOFTWARE, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, K2VIEW MAKES NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED WITH RESPECT TO THE K2VIEW SOFTWARE, OR THE SERVICES, OR THE DOCUMENTATION, BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AND ALL IMPLIED WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. K2VIEW OR ITS AFFILIATES, AGENTS, RESELLERS, LICENSORS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR SUPPLIERS (COLLECTIVELY, THE “K2VIEW REPRESENTATIVES”) DO NOT WARRANT THAT THE K2VIEW SOFTWARE WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE K2VIEW SOFTWARE'S OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY.
8. INDEMNIFICATION
8.1 K2view’s Indemnity Obligations. K2view shall defend, indemnify and hold harmless Customer and its officers, directors and employees from and against any and all third-party claim(s) for: direct losses, damages, settlements or expenses finally awarded in a competent court against Customer (including reasonable legal expenses) arising out of any claim that the authorized use of the K2view Software in accordance with this Agreement infringes upon the Intellectual Property rights of any third party (“Infringement Claim”). As a condition to such defense and indemnification, Customer will provide K2view with prompt written notice of the claim and grant K2view sole control of the defense, settlement, adjustment or compromise of any such claim and will provide K2view with all reasonable information and assistance, at K2view’s expense. Notwithstanding the above, Customer shall be entitled to participate in the defense of such claim and to employ a counsel of its own choice at Customer’s own expense. Customer shall refrain from admitting liability, entering into any settlement or otherwise compromising the claim in whole or in part without the express prior written permission of K2view.
8.2 Infringement Claim. If the K2view Software becomes, or in K2view's opinion is likely to become, the subject of an Infringement Claim, then K2view may, at its sole option and expense: (a) procure for the Customer the right to continue using the K2view Software; (b) replace or modify the K2view Software to avoid the Infringement Claim while remaining functionally substantially similar; or (c) if options (a) and (b) cannot be accomplished despite K2view's reasonable efforts, K2view may accept return of the K2view Software and grant the Customer a pro-rata credit of the license fees for the K2view Software, for the remaining term of the license.
8.3 No Obligation. K2view shall have no obligation to provide indemnification under this Section to the extent that the claim results from: (i) use of the K2view Software in combination with any other products, systems, or software not expressly authorized by K2view; (ii) any alteration or modification of the K2view Software other than by K2view or its designee; (iii) use of the K2view Software in a manner not intended in the Documentation; or (iv) Customer's failure to use updated or modified K2view Software provided by K2view specifically to avoid infringement.
8.4 Customer’s Indemnity Obligations. The Customer agrees to defend, indemnify and hold harmless K2view, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) the Customer's unauthorized use of the K2view Software; and (ii) any third party claim relating to violation of data protection laws by the Customer under this Agreement.
9. LIMITATION OF LIABILITY
EXCEPT FOR K2VIEW’S INDEMNITY OBLIGATION UNDER SECTION 9.1, CUSTOMER'S INFRINGEMENT OR MISAPPROPRIATION OF K2VIEW'S INTELLECTUAL PROPERTY RIGHTS NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY BREACH OR VIOLATION OF THIS AGREEMENT OR FOR ANY ACTION IN CONTRACT, TORT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, SHALL EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO K2VIEW UNDER THE APPLICABLE SCHEDULE GIVING RISE TO SUCH CLAIM DURING THE TWELVE (12) MONTHS PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM BUT IN NO EVENT MORE THAN THE INSURANCE CAP. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOST PROFITS OR EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED, KNOWS OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. INASMUCH AS SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSIONS OR LIMITATIONS AS SET FORTH HEREIN, THE FULL EXTENT OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL BARGAINED FOR BASIS OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
10. TERM; TERMINATION
10.1 Term. This Agreement shall commence as of the Effective Date and remain in effect until terminated in accordance with the provisions of this Article (the “Term”). For the avoidance of doubt, termination of an Order shall not terminate this Agreement and the Parties shall remain free to enter into future Order(s) pursuant to this Agreement and during the Term. The term of each Order shall be as set forth in the applicable Order and shall be non-cancellable for the term set forth therein.
10.2 Termination for Breach; Bankruptcy. Either Party may terminate this Agreement and/or an Order immediately upon written notice if: (i) the other Party is in breach or default of any obligation hereunder, which breach or default is not cured within thirty (30) days of receipt of written notice from the non-breaching Party; or (ii) the other Party becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, whether domestic or foreign and whether voluntary or involuntary, which is not resolved favorably to such Party within sixty (60) days of commencement thereof.
10.3 Effect of Termination. Upon termination of this Agreement and/or any Order: (i) all licenses granted to the Customer under all valid Orders (in the event of termination of the Agreement) or those granted under a specific Order (in the event of its specific termination), as the case may be, shall immediately expire and terminate; (ii) any sums paid by the Customer until the date of termination are non-refundable, and the Customer shall not be relieved of its duty to discharge in full all due sums owed or accrued by the Customer to K2view under this Agreement, which sums shall become immediately due and payable on the date of termination of the Agreement or the applicable Order; (iii) K2view will cease to provide the applicable Support and Maintenance Services; (iv) Customer shall remain obligated to pay K2view for any third party commitments theretofore approved by Customer which K2view is unable to terminate without penalty; and (v) each Party will return to the other Party or destroy any Confidential Information of the other Party in its possession and control, in accordance with Section 4.3 above. Similarly, all copies of the K2view Software (if applicable) shall be deleted by the Customer. Without limiting the foregoing, the K2view Software license fees set forth in the applicable Order shall continue to be paid by Customer to K2view (on the same terms as if this Agreement were still in effect) for as long as Customer continues using the K2view Software following the termination of this Agreement.
10.4 Survival. Any right, obligation or required performance of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
11. MISCELLANEOUS
11.1 Non-Solicitation. During the Term and for one (1) year after its expiration or termination, each of the Parties agree that it shall not induce or attempt to induce any employee or agent of the other Party to leave the employ of the other Party or hire any such employee or agent in any business or capacity.
11.2 Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, war, acts of God or governmental action. The affected Party shall give prompt written notice to the other Party, stating the period of time the force majeure issue is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such force majeure issue.
11.3 Governing Law; Jurisdiction. This Agreement shall be construed and governed by the laws of the state of Texas, excluding its choice or conflict of laws provisions or rules, and each Party hereby irrevocably submits to the jurisdiction of the Courts of Dallas, Texas except that, at the option of K2view, an injunction proceeding may be brought in any venue having jurisdiction.
11.4 Notices. Any demand, notice or other communication to be given in connection with this Agreement will be given in writing and will be given by personal delivery, registered mail or by email, addressed to the contact persons detailed in the Order Form with a copy to Commercials@k2view.com or to such other address, individual or official as may be designated by notice given by either Party to the other Party in the same manner. Any demand, notice or other communication given by personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof or, if by registered mail, on the third (3rd) business day following the posting thereof, or if given by email on the day of transmittal thereof if given during the normal business hours of the recipient or otherwise on the following business day.
11.5 Assignment. Neither Party may assign this Agreement without the prior written consent of the non-assigning Party, which approval shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be freely assigned by K2view to any of its Affiliates or in the event of a Change of Control of K2view. Any assignment in violation of this provision will be invalid. This Agreement will be binding upon, enforceable by and inure to the benefit of the Parties and their respective successors and assigns.
11.6 Independent Contractors. The Parties are independent contractors, and nothing herein is intended or will be construed as creating a partnership, employment, joint venture or agency relationship between the Parties.
11.7 Entire Agreement; Amendments; Severability and Waiver. This Agreement and the applicable Order(s) are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. The terms of this Agreement will take precedence over the terms of any purchase order from Customer for the K2view Software. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each Party. Should any provision (or portion thereof) of this Agreement or any Order be held by a court of competent jurisdiction to be contrary to law or unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of this Agreement and/or the applicable Order and the remainder shall continue in full force and effect. Any such finding by a court of competent jurisdiction shall be limited to such provisions or portions thereof and to such jurisdictions to the fullest extent of the law. The waiver by either Party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. The Parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such Party or its professional advisor was the drafter, but shall be construed according to the intent of the Parties as evidenced by the entire Agreement.
11.8 Definitions
“Affiliate” means a business entity now or hereafter controlled by, controlling or under common control with a Party. Control exists when an entity owns or controls directly or indirectly 50% or more of the outstanding equity.
“Change of Control” shall mean the consummation of: (i) a reorganization, consolidation, merger (by operation of law or otherwise), acquisition or sale or other disposition of all or substantially all of the assets of a Party, other than to an Affiliate of such Party; or (ii) a transfer of more than fifty percent (50%) of the voting rights of a Party, other than to an Affiliate of such Party.
“Confidential Information” means any and all information related to the business, activities, methods or facilities of a Party that: (i) is not generally known to the public, (ii) derives value, economic or otherwise, from not being generally known to the public or to other persons who can obtain value from its disclosure or use, and (iii) is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof. Subject to the exceptions in Section 4.2, all Confidential Information shall be considered as such, whether written or oral, and in any form which such information is either marked as confidential or proprietary or which the other Party, exercising reasonable business judgement would understand to be confidential under the circumstances surrounding its disclosure to the other Party (including, without limitation, engineering documents, research and development, manuals, reports, drawings, plans, flowcharts, software (in source or object code, program listings, data file printouts, printed circuit boards, processes, trade secrets, inventions, mask works, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques, information regarding plans for research and development, component part listings and prices, product information, marketing and selling plans, business plans, new product plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers, and information regarding the skills and compensation of employees or consultants of any other information relating to a Party’s business or technology) which is disclosed by a Party either directly or indirectly to the other Party.
“Customer Materials” means any data or other materials that Customer provides or makes available to K2view in connection with the services rendered by K2view as set forth in each applicable Order (e.g., Support and Maintenance Services, etc.). Customer Materials may include personal data.
“Customer System” means Customer’s network and other operating systems.
“Data Sources” means Data-Source = A System of Record.
• A system of record (SOR) is an information storage and retrieval system that is the originating and authoritative source for a given data element.
• Number of Data Sources = The number of SORs that one K2View Product cluster data is based on.
• A K2View Product Cluster is a collection of interconnected Fabric K2View nodes that collectively represent a single system.
o Each node in the cluster has access to all (and same) data and logic as any other node.
o Deployment of a new logic/functionality is required to only one node in the cluster.
• A named SOR is only counted once for a given K2view Product (TDM, 360X, etc.) and a given K2view Product cluster in any number of Dev and Test environments, and one Production environment.
• An application/application-suite/data lake/data-warehouse is counted according to the number of separate SORs that it is based on. For example:
o A Data-warehouse containing data from 3 separate SORs is counted as 3 Data Sources
o A BSS application suite of CRM, Billing and Ordering is counted as 3 Data Sources
o A customer Care application which uses or updates DB/2, Oracle and Cassandra to store its data, is counted as 3 Data Sources
• The Method (File transfer, Message Bus, CDC, DB Connection, Streaming, etc..), by which data is ingested into the K2view Product, is irrelevant for the purpose of counting the number of underlying Data Sources.
“Documentation” means any user documentation or published specifications for the K2view Software, as set forth in each applicable Order (e.g., Support and Maintenance Services, etc.), and which may be updated by K2view from time to time during the Term.
“Integration” means the integration of the K2view Software with or within the Customer System, as necessary for K2view to render the services hereunder.
“Intellectual Property” means (i) inventions (whether or not patentable), patents and patent applications throughout the world, including all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and re-examinations of any of the foregoing, all whether or not registered or capable of being registered; (ii) common law and statutory trade secrets and all other confidential or proprietary or useful information that has independent value, and all know-how, in each case whether or not reduced to a writing or other tangible form; (iii) all copyrights, whether arising under statutory or common law, whether registered or not; (iv) all trademarks, trade names, corporate names, company names, trade styles, service marks, certification marks, collective marks, logos, and other source of business identifiers, whether registered or not; (v) moral rights in those jurisdictions where such rights are recognized; (vi) any rights in source code, object code, mask works, databases, algorithms, formulae and processes; and (vii) all other intellectual property and proprietary rights, and all rights corresponding to the foregoing throughout the world.
“K2view Software” means K2view’s proprietary software which is specified in the applicable Order appended hereto that is licensed hereunder to Customer.
"Support and Maintenance Services" means the support and maintenance services rendered by K2view as described in the following link: Maintenance and Support.
“Order” means the applicable mutually signed schedule, quote, order or purchase order or similarly titled document, referencing this Agreement.
"Party” or Parties” means K2view or Customer individually, and K2view and Customer collectively.
“Term” shall have the meaning attributed to it under Section 10 hereof.
The definitions contained in this Agreement shall apply to each Exhibit appended hereto. Each Order shall constitute a separate addendum, which shall incorporate the terms and provisions of this Agreement and become effective when executed by both Parties. The provisions of this Agreement shall control over any conflicting provisions in an Order, except to the extent that a provision within the Order explicitly states that the Order shall prevail. The Order shall list license matrix, a description of the K2view Software, terms of the license, fees for the K2view Software and licenses, if any. Customer may purchase additional licenses and/or additional software from K2view pursuant to a subsequent Order.
The use of the terms “including,” “include” or “includes” shall in all cases herein mean “including without limitation,” “include without limitation” or “includes without limitation,” respectively. Words importing the singular include the plural and words importing the masculine include the feminine and vice versa where the context so requires.
11.9 Counterparts. This Agreement and each Order may be executed in multiple counterparts, each of which is to be deemed an original, but all of which, together, constitute one and the same instrument. Electronic transmissions of a Party’s original signature on this Agreement or any Order, and electronic or other legally recognized forms of digital or electronic signature stamps, shall in each case be deemed a valid and legally binding signature and have the same legal force and effect as a signed and delivered original, physical signature page, and the Parties hereby forever waive any and all rights and claims that any such signatures are invalid or that they do not bind such Party to the terms of this Agreement or any Order in any jurisdiction.
