1.Grant of License.
Subject to the terms and conditions of this Agreement and effective as of the Effective Date and continuing for the period for which Customer has ordered and paid for access and use of the Services (the “Term
”), Kolide hereby grants to Customer a limited, non-exclusive, non-transferable right: (a) to access and use the Kolide systems that Kolide makes available to provide the Services (the “Platform
”) solely for Customer’s own internal business purposes; and (b) to download, copy and execute the software applications and API’s specified by Kolide (the “Integration Technology
”) solely for the purpose of integrating and enabling communication between Customer Devices with the Platform, and using the Services in accordance with any limitations set forth in the Documentation (defined below) or otherwise communicated by Kolide. “Customer Device
” means any electronic device that processes data and communicates with the Platform, and include personal computers, mobile and tablet devices, and servers. Customer may use the Platform and Integration Technology only as provided in this Agreement and only in accordance with the documentation or other reasonable instructions of Kolide (“Documentation
The Platform, Services, Integration Technology, Documentation and all other materials provided by Kolide hereunder are the exclusive property of Kolide and its licensors. All rights in and to the Platform Services and Integration Technology that are not expressly granted to Customer in the Agreement are hereby reserved by Kolide and its licensors. Except as expressly provided herein, Kolide does not grant to Customer or any Permitted User (defined below) any express or implied rights to Kolide’s or any third party’s intellectual property.
Customer will be permitted to designate two different types of users: (a) “Administrative Users,” who are responsible to administer the Services; and (b) “Device Owners
” who are employees or consultants of Customer that use one or more Customer Devices (each of Administrative Users and Device Owners, “Permitted Users
”). As provided in more detail below, Customer will be responsible for the actions of its Permitted Users' and its Permitted Users’ compliance with this Agreement. Customer will safeguard, and will ensure that each of its Permitted Users safeguards the user name and passwords associated with their Kolide accounts. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of any Permitted User’s account or the Services, and Customer will notify Kolide immediately upon becoming aware of any unauthorized access or use of any Permitted User’s account of the Services.
4.No Sublicensing; Restrictions on Use.
(a) Definition. “Confidential Information” means any information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, markets, pricing, customer lists, reports, contract terms, software, developments, inventions, processes, designs, drawings, engineering, hardware or software configuration information or user interfaces, marketing, organization, business or finances of or relating to either party to this Agreement or any third party, or any information obtained in confidence or in trust from a third party. Confidential Information of Kolide shall also include, without limitation, the Services and the Content (including any associated software or user interface) and any information which Customer knows or should reasonably understand to be confidential. Confidential Information of Kolide does not include information, technical data or know-how which (i) is already in Customer’s possession without obligations of confidentiality at the time of its disclosure by Kolide; (ii) is or becomes part of the public knowledge without breach of confidentiality obligations; or (iii) is approved by Kolide, in writing, for public release. (b) Confidentiality Obligations. Except as expressly set forth in this Agreement, Customer will not use in any way for Customer’s own account or the account of any third party, nor disclose to any third party, any Confidential Information of Kolide. Customer shall at all times maintain such Confidential Information of Kolide in confidence in the same manner and to the same extent as Customer protects Customer’s own most confidential information (which shall in no event be less than a reasonable degree of care). Upon the termination of this Agreement, Customer shall promptly return to Kolide or delete all copies of any Confidential Information of Kolide in Customer’s possession. (c) Feedback. Customer may from time to time provide suggestions, comments or other feedback to Kolide regarding Kolide’s current or future products and services, including the Services and the Content (collectively, “Feedback”). Customer agrees that such Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation hereunder for or upon Kolide or its use of such Feedback. Except as otherwise provided herein or in a separate subsequent written agreement signed by authorized representatives of the parties, Customer agrees that Kolide shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit any and all Feedback provided to Kolide as Kolide sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property or otherwise. Customer warrants that Customer has all rights necessary to disclose to Kolide any Feedback that Customer so discloses, and Customer shall not provide any Confidential Information of any third party to Kolide unless authorized to do so.
5.Customer Data, Privacy and Security.
In connection with the use of the Services, Permitted Users will upload data and information into the Platform – and the Services, including the Integration Technology, will collect information from Customer Devices. All such data and information is referred to as (“Customer Data
”) and is the sole and exclusive property of Customer.
- Customer Requirement to Obtain Consents from Permitted Users. Customer is solely responsible for the accuracy, legality and use of the Customer Data. Customer represents and warrants that its and its Permitted Users’ use of the Services, including the downloading of the Integration Technology on any Customer Devices and the collection of any Customer Data from such Customer Devices by the Services is in compliance with all applicable laws, rules, and regulations in the applicable jurisdiction in which it is collected and Customer’s policies and procedures. Without limiting the foregoing, Customer will, in accordance with all applicable laws and best commercial practices:
- obtain and store all necessary rights, permissions, consents and approvals from Permitted Users with respect to the foregoing.
- Security. The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards designed to protect Customer Data at a level not materially less protective than as described at kolide.com/security (the “Security Practices Page”). Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of Permitted Users, and the security thereof. We will not be responsible for any damages, losses or liability to Customer, Permitted Users, or anyone else, if such information is not kept confidential by Customer or its Permitted Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services. Any passwords used for the Services are for individual use only. Kolide may passively monitor passwords and, at its discretion, require a user to change such user’s password. If Customer or a Permitted User uses a password that Kolide considers insecure, Kolide may require the password to be changed or may terminate the applicable account. Kolide reserves the right to investigate suspected violations of this Agreement, and to fully cooperate with any law enforcement authorities or court order requesting or directing Kolide to disclose the identity of anyone violating this Agreement or any applicable law.
6.Open Source Software.
Certain software code incorporated into or distributed with the Services may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the MIT License) (collectively, the “Open Source Software
”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. Customer agrees to comply with the terms and conditions of such open-source software license agreements.
7.Customer Licensed Technologies.
The use of certain Services or Integration Technology may require that Customer obtain the right for Kolide to access certain third party technologies licensed, used and/or accessed by Customer and Permitted Users (collectively, “Customer Licensed Technologies”). In the event that Customer provides or makes available to Kolide any Customer Licensed Technologies, Customer hereby grants to Kolide a royalty-free, worldwide, sublicensable, transferable, non-exclusive right and license to use and access the Customer Licensed Technologies, and to use any data collected from such Customer Licensed Technologies in the same manner that Kolide is authorized to use the Customer Data. Customer represents and warrants that Customer possesses all rights and licenses necessary to make such grant to Kolide. KOLIDE DOES NOT WARRANT THAT IT SUPPORTS ANY CUSTOMER LICENSED TECHNOLOGIES.
- Definition. “Confidential Information” means non-public information pertaining to a party’s business provided by one party (“Discloser”) to the other (“Recipient”) that is designated as confidential or reasonably should be considered as such, excluding information that: (i) is or becomes public through no fault of the Recipient; (ii) was known to Recipient before the disclosure without restriction as to use or disclosure; (iii) is disclosed to Recipient by a third party without violation of any confidentiality restrictions; or (iv) is independently developed by the Recipient without access to or use of the Discloser’s information. Confidential Information of Kolide will also include, without limitation, non-public information regarding the Services, Platform, Integration Technology, Documentation and the pricing of any of the foregoing. Customer Data is not the Confidential Information of Customer, but, instead, is treated in accordance with the provisions of Section 5.
- Confidentiality Obligations. The Recipient (which, for the Customer, will include any Permitted Users) will: (i) only use the Confidential Information of the Discloser to exercise its rights and/or to perform under this Agreement; (ii) use the same degree of care to prevent unauthorized use and disclosure of Discloser’s Confidential Information as it does for its own confidential information, but in no event less than reasonable care; and (iii) with respect to employees, contractors, or agents of Recipient, limit access to the Discloser’s Confidential Information only to those employees, contractors, or agents who have a need to access such Confidential Information and who are subject to confidentiality obligations at least as restrictive as those specified in this Section. The Recipient may disclose the Discloser’s Confidential Information to the extent required by any court, governmental body, or law or regulation, provided that, to the extent legally permissible, Recipient will provide prompt written notice to the Discloser of such disclosure and reasonably assists Discloser in efforts to limit such required disclosure. Upon written request of the Discloser, the Recipient will return or destroy, at Discloser’s option, the Discloser’s Confidential Information.
- Feedback. Customer and its Permitted Users may from time to time provide suggestions, comments or other feedback to Kolide regarding Kolide’s current or future products and services, including the Services (collectively, “Feedback”). Kolide will be free to use or incorporate into the Services any such Feedback.
9.Fees and Payment.
- Fees. Customer will pay the fees set forth at: https://kolide.com/pricing based on the number of Active Customer Devices deployed in a given month. An “Active Customer Device” means a Customer Device that communicates with the Services at least once within a thirty (30) day period. In the event that a Customer Device does not communicate with the Services at least once in such period or is designated by a Customer as inactive, Kolide will mark the Customer Device as inactive and will issue a prorated credit to Customer’s account for any prepaid, but unused time associated with such inactive Customer Device. All credits are non-transferable, non-refundable, and will expire upon the end of the Term.
- Payment Terms. Customer will pay the fees set forth at: https://kolide.com/pricing. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, fees paid are non-refundable. Payment of all invoices is due within fifteen (15) days from the invoice date. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse Kolide for such withholding tax. Kolide will have the right to suspend Customer’s access to the Services (and delete its Customer Data) for non-payment of any fees owed to Kolide, in addition to any other rights or remedies Kolide may have, including, without limitation, terminating this Agreement. In addition to any other remedies, Kolide will have the right to charge Customer a reconnection fee if its access to the Services are suspended for non-payment.
- Expenses. Customer is responsible for obtaining and maintaining, at its sole expense, all of the hardware, software, and Internet connectivity and bandwidth necessary and appropriate for Customer and its Permitted Users to access and use the Services.
10.Term and Termination.
This Agreement will take effect on the Effective Date and will remain effective for the Term Form unless earlier terminated as provided herein. Either party may terminate the Agreement for convenience upon thirty (30) days advance written notice to the other. Any and all claims and payment obligations that arose before termination will survive such termination. The following Sections will also survive termination: 2, 5 and 8 through 26. Upon termination of the Agreement, Customer will promptly cease accessing and using the Services. If Kolide terminates the Agreement solely for its convenience, Customer will be entitled to a refund of all prepaid but unused subscription fees, after deduction of any and all other fees and charges that are then due and owing from Customer.
11.DISCLAIMER OF WARRANTIES.
CUSTOMER’S AND ITS PERMITTED USERS’ USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK. EXCEPT AS PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED. EXCEPT AS PROVIDED HEREIN, KOLIDE DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT . KOLIDE DOES NOT REPRESENT OR WARRANT THAT THE AVAILABILITY OR OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ACCURATE, TIMELY, SECURE, OR ERROR-FREE.
12.LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOSS OF USE, ARISING FROM OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KOLIDE’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) WILL NOT EXCEED THE AMOUNT CUSTOMER HAS ALREADY PAID TO KOLIDE FOR THE APPLICABLE SERVICES OUT OF WHICH THE LIABILITY AROSE IN THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO SUCH DAMAGES. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
- Kolide will defend Customer against any and all claims, demands, suit or proceeding (hereinafter “Claims”) by a third party alleging that the Services infringe or misappropriate the intellectual property rights of such third party. Kolide will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such Claim or those costs and damages agreed to by Kolide in a monetary settlement of such action; provided, however, that Kolide will have no liability if such Claim arises from: (i) Customer Data or Third Party Services; or (ii) any modification, combination or development of the Services that is not performed by Kolide, including in the use of any application programming interface (API). Customer must provide Kolide with prompt written notice of any such Claim and allow Kolide the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Kolide’s defense and settlement of such Claim. This Section states Kolide’s sole liability with respect to, and Customer’s exclusive remedy against Kolide for any such Claims.
- Customer will defend Kolide against any and all Claims by a third party arising from or relating to Customer’s or any of its Permitted User’s (i) violation of this Agreement; or (ii) use of the Services, except to the extent the Claim is subject to indemnification under Section 13(a) above. Customer will pay those costs and damages finally awarded against Kolide in any such action that are specifically attributable to such Claim or those costs and damages agreed to by Customer in a monetary settlement of such action. Kolide must provide Customer with prompt written notice of any such Claim and allow Customer the right to assume the exclusive defense and control, and cooperate with any reasonable requests assisting Customer’s defense and settlement of such Claim. This Section states Customer’s sole liability with respect to, and Kolide’s exclusive remedy against Customer for any such Claims.
14.Choice of Law; Dispute Resolution.
(a) User Conduct. This Agreement will be governed and interpreted pursuant to the laws of the State of New York, United States of America, notwithstanding any principles of conflicts of law. The parties expressly waive and exclude the application of the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods. Any action or proceeding arising from or relating to this Agreement will be brought in the state and federal courts for New York, New York and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
17.Relationship of Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
In the event Customer or Kolide brings an action to enforce this Agreement and prevails, the prevailing party will be entitled to recover its attorneys’ fees and costs in connection with such action.
As the Services evolve, Kolide may change this Agreement. If Kolide makes a material change to this Agreement, we will provide Customer with reasonable notice prior to the change taking effect, either by emailing the email address associated with Customer’s account or by messaging Customer through the Services. Customer can review the most current version of the this Master Subscription Agreement at any time by visiting https://kolide.com/terms
and by visiting the most current versions of the other pages that are referenced in this Agreement. The materially revised Agreement will become effective on the date set forth in our notice, and all other changes will become effective upon posting of the change. If Customer (or any Permitted User) accesses or uses the Services after the effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (a) the terms of any order form (if any); (b) the portions of any Customer-specific amendment signed by both parties that apply to Customer (if any); (c) this Agreement; and (d) finally any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
Neither party will be liable to the other for any delay or failure to perform any of such party’s obligations under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of such party, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action. In the event of any such failure or delay, the parties will use commercially reasonable efforts to perform as soon as practicable.
Customer may not assign this Agreement without the prior written consent of Kolide. Any attempt to assign this Agreement other than in accordance with this provision will be null and void. The terms of this Agreement will be binding on the parties and their successors and assigns.
All notices, consents, and approvals required or permitted under this Agreement will be made in writing, by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized overnight carrier, if to Kolide, to 100 Dover Street, Suite 100A, Somerville MA, 02144, Attn: Jason Meller, and if to Customer, to the address Customer provides as part of the registration process. Any such notice will be effective upon receipt, refusal of delivery, or (at latest) three (3) days after notice is sent. Each party may change such party’s address for receipt of notice by giving notice of such change to the other party.
24.Export Control; Compliance with Laws.
Customer will comply with all United States and foreign export and import laws, rules, and regulations related to Customer’s use of any Services outside the United States. Customer represents and warrants that: (a) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) Customer is not listed on any U.S. Government “watch list” of prohibited or restricted parties, including the Specially Designated Nationals list published by the Office of Foreign Assets Control of the U.S. Treasury or the Denied Persons List published by the U.S. Department of Commerce. Customer represents and warrants that it will comply with all applicable laws, rules, and regulations related to Customer’s and its Permitted Users’ use of the Services, including, but not limited to the use of any data obtained via the Services.
As used in this Agreement, the term “including” is meant to be inclusive and means “including without limitation.” The headings and italicized lead-in sentences of Sections in this Agreement are intended solely for convenience of reference and will be given no effect in the interpretation or construction of this Agreement.
In the event that the license granted hereunder is pursuant to a contract with either a defense or civilian agency of the United States Government, Customer agrees that the Services are provided with restricted rights. In such a case, the Services and the Documentation are “Commercial Items,” as defined at 48 C.F.R. Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. Section12.212 or 48 C.F.R. Section 227.7202, as applicable. Consistent with 48 C.F.R. Section 12.212 or 48 C.F.R. Sections 227.7202 1 through 227.7202 4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government users: (a) only as Commercial Items and (b) with only those rights as are granted to all other licensees and end users pursuant to this Agreement.