1. Access and Use
2. Payment and Taxes
3. Rights in Intellectual Property
4. Confidentiality
5. Security and Processing of Personal Data
6. Warranties
7. Indemnification
8. Limitation of Liability
9. Assignment.
10. Export Control and Restricted Rights
11. Custom Services.
12. Term and Termination
13. Miscellaneous
KRATEO.AI (“KRATEO.AI”) IS WILLING TO GRANT ACCESS TO THE SAAS PRODUCTS TO YOU AS THE COMPANY OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SAAS PRODUCTS (REFERENCED BELOW AS “CUSTOMER”) ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. CUSTOMER AND KRATEO.AI MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SAAS PRODUCTS. THIS SAAS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN CUSTOMER AND KRATEO.AI. BY INDICATING CONSENT ELECTRONICALLY, EXECUTING THROUGH DOCUSIGN OR ACCESSING OR OTHERWISE USING THE SAAS PRODUCTS, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY OR EXECUTE THROUGH DOCUSIGN AND MAKE NO FURTHER USE OF THE SAAS PRODUCTS.
1.1. Access and Use.
Subject to payment of all applicable fees set forth in the Order or payment in accordance with an Indirect Order through a Channel Partner (as appropriate) and the terms and conditions of this Agreement, KRATEO.AI grants Customer, during the Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the SaaS Products and applicable Documentation solely for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and in the quantity specified in the applicable Order. KRATEO.AI may update the SaaS Products from time-to-time in its sole discretion but shall not remove a primary function of the SaaS Products without providing prior notice to Customer.
1.2. Access and Use Restrictions.
Customer shall not (directly or indirectly): (a) copy or reproduce the SaaS Products or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the SaaS Products as set forth in the applicable Order; (c) remove or destroy any patent, copyright, trademark or other proprietary marking or legends placed on or contained in the SaaS Products, Documentation or KRATEO.AI Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the SaaS Products; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the SaaS Products, attempt to recreate the SaaS Products or use the SaaS Products for any competitive or benchmark purposes; (g) create, translate or otherwise prepare derivative works based upon the SaaS Products, Documentation or KRATEO.AI Intellectual Property; (h) interfere with or disrupt the integrity or performance of the SaaS Products; (i) attempt to gain unauthorized access to the SaaS Products or its related systems or networks, or perform unauthorized penetrating testing on the SaaS Products; (j) use the SaaS Products in a manner that infringes on the Intellectual Property rights, publicity rights, or privacy rights of any third party, or to store or transfer defamatory, trade libelous or otherwise unlawful data; or (k) except as otherwise agreed by the Parties, store in or process with the SaaS Products any data not required by the Documentation. Fees for the SaaS Products are based on use of the SaaS Products in a manner consistent with the Documentation. If Customer uses the SaaS products in a manner that is outside or in violation of the Documentation, then Customer will cooperate with KRATEO.AI to address any applicable burden on the SaaS Products or pay an additional mutually agreed upon fee.
1.3. Customer Responsibilities and Login Access to the SaaS Products.
Customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SaaS Products, (ii) with reasonable assistance from KRATEO.AI, that such Authorized Users have been trained in proper use of the SaaS Products, (iii) proper usage and security of passwords, tokens and access procedures with respect to logging into the SaaS Products; and (iv) that Customer procures, properly configures and maintains, does not modify and secures such Equipment and third party services, applications, software, hardware, devices and systems that KRATEO.AI identifies in the Documentation as required and compatible with the use of the SaaS Products. KRATEO.AI reserves the right to monitor Customer’s use of the SaaS Products and refuse registration of, or to cancel, login IDs that it reasonably believes violates the terms and conditions set forth in this Agreement, in which case KRATEO.AI will promptly inform Customer in writing of such refusal or cancellation. In addition to the rights set forth in this KRATEO.AI SaaS Terms of Service Agreement, KRATEO.AI may suspend Customer’s access and use of the SaaS Products if there is an unusual and material spike or increase in Customer’s use of the SaaS Products and KRATEO.AI reasonably suspects or knows that such traffic or use is fraudulent or illegal or materially and negatively impacting the operating capability of the SaaS Products. Should Customer’s access and use of the SaaS Products be suspended, the SaaS Products are intended to be designed to enable Customer to continue to access rooms and open doors through other means, as needed, despite having been equipped with SaaS Products. KRATEO.AI will provide notice prior to such suspension if permitted by applicable law or unless KRATEO.AI reasonably believes that providing such notice poses a risk to the security of the SaaS Products. KRATEO.AI will promptly reinstate Customer’s access and use once the issue of suspension has been resolved.
1.4. Trial Services.
If Customer is using a free trial, a proof of concept version of the SaaS Products, a beta version of the SaaS Products, or using the SaaS Products on any other free-of-charge or special trial use fee basis as specified in an Order including any related support services to the extent provided by KRATEO.AI in its sole discretion (collectively, “Trial Services”), KRATEO.AI makes such Trial Services available to Customer until the earlier of: (i) the end of the free trial, special trial use or proof of concept period or beta testing period as communicated by KRATEO.AI or specified in an Order; (ii) the start date of any purchased version of such SaaS Products; or (iii) written notice of termination from KRATEO.AI (“Trial Services Period”). KRATEO.AI grants Customer, during the Trial Services Period, a non-exclusive, nontransferable right to access and use the Trial Services for Customer’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement. Customer is authorized to use Trial Services only for evaluation and not for any business purposes, unless otherwise authorized by KRATEO.AI in writing. Any data Customer enters into the Trial Services and any configurations made to the Trial Services by or for Customer during the term of such Trial Services will be permanently lost unless Customer: (a) has purchased a subscription to the same SaaS Products as covered by the Trial Services; or (b) exports such data or configurations before the end of such free or special trial use period. There is no guarantee that features or functions of the Trial Services will be available, or if available will be the same, in the general release version of the SaaS Products, and Customer should review the SaaS Products features and functions before making a purchase. KRATEO.AI will be under no obligation to provide Customer any support services with respect to the Trial Services. Notwithstanding anything to the contrary, KRATEO.AI PROVIDES THE TRIAL SERVICES “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Customer assumes all risks and all costs associated with its use of the Trial Services. Customer’s sole and exclusive remedy in case of any dissatisfaction or KRATEO.AI’s breach of the Agreement with respect to such Trial Services is termination of the Trial Services. Any obligations on behalf of KRATEO.AI to indemnify, defend, or hold harmless under this Agreement are not applicable to Customers using Trial Services.
1.5. Third Party Materials.
The SaaS Products include Third-Party Materials, use of which is subject to their respective OSS Licenses as indicated in the Documentation. KRATEO.AI warrants that the inclusion of such ThirdParty Materials in the SaaS Products will not prevent Customer from exercising the license rights provided to Customer herein in respect of the SaaS Products or limit Customer’s ability to use the SaaS Products in accordance with the Documentation.
1.6. Support.
As part of its provision of the SaaS Products, KRATEO.AI shall make available technical support to Customer in accordance with the Support Services terms applicable to the SaaS Products. Upon notification from KRATEO.AI, Customer shall promptly update any Agents on Customer systems that interact with the SaaS Products. Customer acknowledges and agrees that its failure to timely install such an update may result in disruptions to or failures of the SaaS Products, security risks or suspension of Customer’s access to the SaaS Products, without any liability on the part of KRATEO.AI to Customer. As used herein, “Agents” means KRATEO.AI’s proprietary reader software, systems and locally installed software agents and connectors that interact with the SaaS Products as may be provided by KRATEO.AI in connection with the SaaS Products.
1.7. Mobile Applications.
With regard to SaaS Products that require the use of mobile applications by an Authorized User, Customer shall ensure that all Authorized Users promptly download and install all available updates for the mobile applications. Customer further acknowledges and agrees that the SaaS Products may not properly operate should any Authorized User fail to do so, and that KRATEO.AI is not liable for any damages caused by a failure to update mobile applications accordingly.
2.1. Payment Terms.
Customer shall pay all invoices within thirty (30) days of date of invoice, without any deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith), and payment will be sent to the physical or electronic address specified by KRATEO.AI. Any amounts arising in relation to this Agreement not paid when due will be subject to a late charge of one and one-half percent (1 ½ %) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. Without prejudice to Customer’s rights set out elsewhere in this Agreement, all SaaS Products fees are non-refundable and payable in advance. KRATEO.AI may invoice for purchases of SaaS Products upon access or delivery.
2.2. Taxes.
The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future based on applicable legislation, on the SaaS Products. Unless otherwise agreed between the Parties, Customer will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. KRATEO.AI shall include the Indirect Taxes on its invoice to Customer and remit such Indirect Taxes collected to the relevant authority if required by applicable law. KRATEO.AI will be responsible for income or direct taxes imposed on KRATEO.AI’s net income or gross receipts in its tax jurisdiction. Notwithstanding the forgoing, all payments made under this Agreement shall be in cleared funds, without any deduction or set-off, and free and clear of and without deduction from any Indirect Taxes or other withholdings of any nature.
2.3. Indirect Orders.
If Customer places an Indirect Order, then KRATEO.AI grants the rights described in this Agreement in consideration for and subject to: (a) Customer’s agreement to comply with the pricing and payment terms of the Indirect Order, to be separately agreed between Customer and the applicable Channel Partner; and (b) Customer’s agreement to comply with its obligations set forth in this Agreement (including the restrictions on use of the SaaS Products). Notwithstanding the foregoing, the final sales price or rate shall be freely and independently determined between the applicable Channel Partner and Customer. For the avoidance of doubt, in the case of such an Indirect Order, any indication in this Agreement of an agreement between Customer and KRATEO.AI for the price payable by Customer for such Indirect Order shall be null and void and not form a binding part of this Agreement and the provisions of this Agreement related to payment terms, pricing and/or order procedures shall not apply.
3.1. Intellectual Property.
Except for the rights granted in this Agreement, all rights, title, and interest in and to the SaaS Products, Documentation, and KRATEO.AI Intellectual Property are hereby reserved by KRATEO.AI, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall transfer ownership of any Intellectual Property rights from one Party to the other.
3.2. Customer Data.
Customer owns all right, title and interest in all Customer Data. Nothing in this Agreement shall be construed to grant KRATEO.AI any rights in Customer Data beyond those expressly provided herein. Customer grants KRATEO.AI and its Affiliates the limited, non-exclusive, worldwide license to view and use the Customer Data solely for the purpose of providing the SaaS Products.
3.3. Usage Data and Suggestions.
KRATEO.AI shall be permitted to collect and use the Usage Data for its reasonable business purposes and for Customer’s benefit. In the event KRATEO.AI wishes to disclose the Usage Data or any part thereof to third parties (either during the Subscription Term or thereafter), such data shall be de-identified and/or presented in the aggregate so that it will not identify Customer or its Authorized Users. The foregoing shall not limit in any way KRATEO.AI’s confidentiality obligations pursuant to section 4 below. To the extent that Customer provides KRATEO.AI with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon KRATEO.AI pursuant to this Agreement, and may be implemented by KRATEO.AI in its sole discretion. Customer acknowledges that any KRATEO.AI products or materials incorporating any such Suggestions shall be the sole and exclusive property of KRATEO.AI.
4.1. Confidential Information.
The Parties acknowledge that each may disclose certain valuable confidential and proprietary information to the other Party. The receiving Party may only use the disclosing Party’s Confidential Information to fulfil the purposes of this Agreement and in accordance with the terms of this Agreement. The receiving Party will protect the disclosing Party’s Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This section 4 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof. Additionally, the obligations set forth in section 5.4 and not this section 4 herein apply to Customer Data.
4.2. Exceptions.
Information will not be deemed Confidential Information if it: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of or reliance upon the disclosing Party’s Confidential Information, and the receiving Party can provide evidence to that effect. The receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing Party prior written notice sufficient to permit the disclosing Party to contest such disclosure.
4.3. Advertising and Publicity.
Neither Party shall make or permit to be made any public announcement concerning the existence, subject matter or terms of this Agreement or relationship between the Parties without the prior written consent of the other Party except as expressly permitted in this section. Customer grants KRATEO.AI and its Affiliates during the term of the Agreement the right to use Customer’s trade names, logos, and symbols (“Customer Marks”) in its public promotional materials and communications for the sole purpose of identifying Customer as a KRATEO.AI customer. KRATEO.AI shall not modify the Customer Marks, or display the Customer Marks any larger or more prominent on its promotional materials than the names, logos, or symbols of other KRATEO.AI customers. The foregoing promotional materials and communications may be created, displayed, and reproduced without Customer’s review, provided that they are in compliance with this section and any Customer Marks usage guidelines provided by Customer to KRATEO.AI in writing.
5.1. Customer Data Content.
As between KRATEO.AI and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the SaaS Products; (iii) ensuring Customer has a valid legal basis for the processing of Customer Data and for sharing Customer Data with KRATEO.AI (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws. The type of Customer Data that KRATEO.AI collects including how it uses and handles such data are disclosed in the KRATEO.AI privacy policy posted on the KRATEO.AI website.
5.2. Data Protection Laws.
The Parties shall comply with their respective obligations under the Applicable Data Protection Laws. In particular, if Customer is established in the European Economic Area (“EEA”), in the United Kingdom (“UK”), or will, in connection with the SaaS Products, provide KRATEO.AI with personal data relating to an individual located within the EEA or the UK, the Parties shall comply with the Data Processing Addendum found at https://www.KRATEO.AI.com/KRATEO.AI-Data-Processing-Addendum.pdf (“DPA”) which in such case is hereby incorporated into this Agreement.
5.3. Security of Customer Data.
KRATEO.AI shall: (i) ensure that it has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations in accordance with the terms of this Agreement, and as otherwise expressly permitted in this Agreement. KRATEO.AI shall not materially diminish its security controls with respect to Customer Data during a particular SaaS Products term. The obligations set forth in this Section 5.3 are in addition to any confidentiality, privacy, security or other requirements contained in the DPA, as applicable.
6.1. KRATEO.AI Limited SaaS Products Warranty/Customer Warranties.
During the applicable Subscription Term, KRATEO.AI warrants that: (a) the SaaS Products will perform in substantial conformity with the Documentation; and (b) KRATEO.AI will use industry standard measures designed to detect viruses, worms, Trojan horses or other unintended malicious or destructive code in the SaaS Products. Should use of the SaaS Products fail, become interrupted or unavailable due to scheduled or un-scheduled maintenance, or as a result of other causes, the SaaS Products are intended to be designed to enable Customer to continue to access rooms and open doors, through other means, as needed, despite having been equipped with the SaaS Products. The foregoing warranties are void if the failure of the SaaS Products has resulted from negligence, error, or misuse of the SaaS Products (including use not in accordance with the Documentation) by Customer, the Authorized User or by anyone other than KRATEO.AI. Customer shall be required to report any breach of warranty to KRATEO.AI within a period of thirty (30) days of the date on which the incident giving rise to the claim occurred. KRATEO.AI’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for breach of these warranties will be for KRATEO.AI, at its expense, to use reasonable commercial efforts to correct such nonconformity within thirty (30) days of the date that notice of the breach was provided; and, if KRATEO.AI fails to correct the breach within such cure period, Customer may terminate the affected Order and, in such event, KRATEO.AI shall provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Products. Without derogating from KRATEO.AI’s obligations under this Agreement, Customer warrants that it shall take and maintain appropriate steps within its control to protect the confidentiality, integrity, and security of its Confidential Information and Customer Data, including: (i) operating the SaaS Products in accordance with the Documentation and applicable law and; and (ii) dedicating reasonably adequate personnel and resources to implement and maintain the security controls set forth in the Documentation. Customer will be responsible for the acts and omissions of its Authorized Users.
6.2. Compliance with Law.
Each Party shall comply with all applicable, laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
6.3. Disclaimers and Customer Acknowledgements.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE SAAS PRODUCTS ARE PROVIDED “AS IS” AND KRATEO.AI DOES NOW WARRANT THAT THE SAAS PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. ANY AND ALL WARRANTIES, EXPRESSED, INCORPORATED OR IMPLIED, ARE LIMITED TO THE EXTENT AND PERIOD MENTIONED IN THIS AGREEMENT. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, KRATEO.AI DISCLAIMS (AND DISCLAIMS ON BEHALF OF ITS LICENSORS AND/OR CONTRIBUTORS TO ANY THIRD PARTY MATERIALS) ALL OTHER WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER EXPRESS OR IMPLIED OR INCORPORATED INTO THIS AGREMEENT BY STATUTE, COMMON LAW OR OTHERWISE, INCLUDING THE IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER ACKKNOWLEDGES THAT KRATEO.AI WILL HAVE NO LIABILITY FOR DELAYS, FAILURES, PERFORMANCE ISSUES OR LOSSES ATTRIBUTABLE OR RELATED IN ANY WAY TO THE USE OR IMPLEMENTATION OF ANY THIRD PARTY SYSTEMS, APPLICATIONS, COMPONENTS, WIRING SCHEMES, DEVICES, SOFTWARE, HARDWARE, EQUIPMENT OR SERVICES NOT PROVIDED BY KRATEO.AI. CUSTOMER FURTHER ACKNOWLEDGES THAT SAAS PRODUCTS MAY BE TEMPORARILTY UNAVAILABLE DUE TO SCHEDULED, UN-SCHEDULED OR EMERGENCY MAINTENANCE AND KRATEO.AI WILL DELOY COMMERCIALLY REASONABLE EFFORTS TO POST A NOTICE OF SUCH MAINTENANCE ON ITS WEBSITE.
7.1. KRATEO.AI Infringement Indemnity.
KRATEO.AI shall defend and indemnify Customer and/or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of a third party’s U.S. patent, copyright, trademark or trade secret caused by Customer’s authorized and permitted use of the SaaS Products in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
7.2. Customer Data and Use Indemnity.
Customer shall defend and indemnify KRATEO.AI and/or its Affiliates and their officers, directors and employees against any third-party claims, suits and proceedings (including those brought by a government entity), and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) resulting from: (i) an alleged infringement or violation by the Customer Data of a third-party’s patent, copyright, trademark or trade secret; (ii) KRATEO.AI’s use of the Customer Data violating applicable laws, including any Applicable Data Protection Laws, provided that such use is in accordance with the terms of this Agreement and (where applicable) with the terms of the DPA; or (iii) a breach of Customer warranties.
7.3. Process.
Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.
7.4. Exclusions.
The above KRATEO.AI obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (a) use of the SaaS Products not in accordance with the Documentation and this Agreement; (b) Customer’s use of the SaaS Products in violation of applicable laws; (c) any modification, alteration or conversion of the SaaS Products not created or approved in writing by KRATEO.AI; (d) any combination or use of the SaaS Products with any computer, hardware, software, data or service not required or authorized by the Documentation; (e) KRATEO.AI’s compliance with specifications, requirements or requests of Customer; or (f) Customer’s gross negligence or willful misconduct.
7.5. Remedies.
If the SaaS Products become, or KRATEO.AI reasonably determines that the SaaS Products is likely to become, subject to a claim of infringement for which KRATEO.AI must indemnify Customer as described above, KRATEO.AI may at its option and expense: (a) procure for Customer the right to continue to access and use the SaaS Products, (b) replace or modify the SaaS Products so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing SaaS Products, or (c) if neither of the foregoing options are available in a timely manner on commercially reasonable terms, terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SaaS Product. This section titled “Indemnification” states the sole liability of KRATEO.AI and the exclusive remedy of Customer with respect to any indemnification claims arising out of or related to this Agreement.
8.1. Maximum Liability.
Except for liability caused by KRATEO.AI’s intellectual property infringement indemnification obligations in section 7.1, Customer Data infringement indemnity in section 7.2, or Customer’s payment obligations herein, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the total amount paid or payable to KRATEO.AI under this Agreement during the twelve (12) month period preceding the date of the initial claim.
8.2. No Consequential Damages.
NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, LOSS OF BUSINESS, LOSS OR CORRUPTION OF DATA, INCREASED COST OF OPERATIONS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, INDEMNITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPRESSLY SET FORTH IN THE KRATEO.AI MAINTENANCE AND SUPPORT TERMS (FOUND AT WWW.KRATEO.AI.COM/MAINTENANCE-AND-SUPPORT-TERMS.PDF), KRATEO.AI DISCLAIMS ALL LIABILITY RESULTING FROM ANY UN-AVAILABILITY, INTERRUPTION IN, DOWNTIME OR OUTAGE OF THE SAAS PRODUCTS.
8.3. No Liability Exclusion or Limitation.
This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a Party’s negligence; or (b) gross negligence, willful misconduct, or fraud.
Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger, acquisition, sale of business or substantially all of a Party’s assets or to an Affiliate, upon written notice to the other Party; provided however that the assignee assumes all of the assignor’s obligations under this Agreement.
10.1. Export Control.
The exportation of the SaaS Products and Documentation, and all related technology and information thereof are subject to U.S. laws and regulations pertaining to export controls and trade and economic sanctions, including the U.S. Export Administration Act, Export Administration Regulations, the Export Control Reform Act, and the Office of Foreign Assets Control’s sanctions programs, and the laws of any country or organization of nations within whose jurisdiction Customer (or its Authorized Users who may use, gain access to or otherwise receive the SaaS Products as expressly authorized by this Agreement) operates or does business, as amended, and the rules and regulations promulgated from time to time thereunder. Specifically, Customer hereby undertakes not to export, re-export, access or grant access to the SaaS Products and all related technology, information, materials and any upgrades thereto to: (a) any Prohibited Persons; (b) any country to which such export, re-export or access from is restricted or prohibited per the foregoing applicable laws; or (c) otherwise in violation of any applicable export or import restrictions, laws or regulations. Customer also certifies that it is not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person.
10.2. Commercial Computer Software and FedRAMP Products.
If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that: (i) the SaaS Products (including any software forming a part thereof) were developed entirely at private expense; (ii) the SaaS Products (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to KRATEO.AI; (iii) the SaaS Products (including any software forming a part thereof) are not in the public domain; and (iv) the software forming a part of the SaaS Products is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFARS section 252.227-7014 or FAR Part 12.212. Customer shall provide no rights in the Software (including any software forming a part thereof) to any U.S. Government agency or any other party except as expressly provided in this Agreement. If Customer places an Order for SaaS Products which are designated by KRATEO.AI as “FedRAMP Authorized,” (not yet available), the KRATEO.AI Rider to SaaS Terms of Service for FedRAMP Products found at https://www.KRATEO.AI.com/contractterms/ (not yet available) is incorporated herein and will apply to KRATEO.AI’s provision of such SaaS Products.
In the future, KRATEO.AI anticipates that Customer will have the ability to separately purchase from KRATEO.AI custom services in relation to the SaaS Products as may be generally available by KRATEO.AI to its customers, pursuant to KRATEO.AI’s then applicable custom services terms (not yet available).
12.1. Term.
This Agreement will be effective upon Customer’s first access to a SaaS Product and shall remain in force during the applicable Subscription Term of the SaaS Product or throughout Customer’s continued use of the SaaS Product, as applicable.
12.2. Termination.
Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party: (i) materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other Party; or (ii) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. In addition, a Party may terminate this Agreement, a SOW, or an Order , in whole or in part, or cease provision of the SaaS Products if required to comply with applicable law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party. KRATEO.AI reserves the right to suspend Customer’s access to the applicable SaaS Products upon 30 days’ written notice to Customer if: (a) an invoice is more than sixty (60) days past due; or (b) if there is an uncured material breach of this Agreement. KRATEO.AI will promptly reinstate Customer’s access and use of the SaaS Products and service once the issue has been resolved. Upon termination or expiration of the Agreement or an Order, (x) any accrued rights and obligations will survive; (y) all outstanding fees and other charges under the Agreement or Order (as applicable) will become immediately due and payable, and (z) Customer will have no further right to access or use the applicable SaaS Products or services. The applicable self-hosted software licenses will also be terminated, along with any associated support services, in accordance with the terms of the applicable Order.
12.3. Effects of Termination/Expiration.
Upon termination or expiration of an applicable Subscription Term, KRATEO.AI may immediately de-activate Customer’s account, and: (i) Customer will have no further right to access or use the SaaS Products; and (ii) each Party shall return or destroy any tangible Confidential Information of the other Party within its possession or control that is not contained on the SaaS Products promptly upon receiving written request from the other Party. Any Customer Data contained on the SaaS Products will be deleted within sixty (60) days of termination/expiration of Customer’s Subscription Term. Customer acknowledges that it is responsible for exporting any Customer Data to which Customer desires continued access after termination/expiration, and KRATEO.AI shall have no liability for any failure of Customer to retrieve such Customer Data and no obligation to store or retain any such Customer Data beyond 30 days following termination or expiration of the Customer’s Subscription Term. Any Customer Data contained on the SaaS Products will be deleted within 60 days of termination or expiration of Customer’s Subscription Term.
13.1. Independent Contractors.
Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between KRATEO.AI and Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
13.2. Notices.
All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for KRATEO.AI should be sent to the following addresses: (i) for physical Notices the address specified for KRATEO.AI in section 13.4 “Governing Law and Jurisdiction” and; (ii) for electronic Notices to: contract-notices@KRATEO.AI.com. In the event that Customer has any technical support-related queries, the contact information for support can be found at: https://www.KRATEO.AI.com/customer-support/.
13.3. Force Majeure.
With the exception of Customer’s payment obligations herein, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
13.4. Governing Law and Jurisdiction.
This Agreement shall be governed by the laws of the State of Texas, United States of America without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Except for such claims that are required to be arbitrated as set forth in the Arbitration Agreement below, Customer agrees to submit to the exclusive jurisdiction and venue of the state and federal courts in and for Harris County, Texas, and Customer consents to the personal jurisdiction of such courts.
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Agreement to Arbitrate Disputes. Customer and KRATEO.AI agree that any dispute, claim or controversy that cannot be resolved informally arising out of or relating in any way to the SaaS Products and/or services, this Agreement or this Arbitration Agreement shall be determined by binding arbitration by a single arbitrator in accordance with this Section 13.4 (a) through (f) (“Arbitration Agreement”). Arbitration is generally more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Where so authorized, arbitrators can award the same damages and relief that a court can award. BY AGREEING TO THESE TERMS, CUSTOMER AGREES THAT THE U.S. FEDERAL ARBITRATION ACT (“FAA”) GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS ARBITRATION AGREEMENT, AND THAT CUSTOMER AND KRATEO.AI ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Arbitration Agreement shall survive any termination of the Agreement.
Arbitration Notice. If a dispute between the Parties cannot be resolved between the Parties themselves, the complaining Party must first send to the other Party, by certified mail, a written notice of the claim (“Arbitration Notice”). The Arbitration Notice to KRATEO.AI must be addressed to: KRATEO.AI 808 Travis St., Suite 310, Houston, TX 77002. Except as provided below, if KRATEO.AI initiates arbitration, it will send a written Arbitration Notice to the email address used for the Customer account. An Arbitration Notice, whether sent by Customer or by KRATEO.AI, must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If KRATEO.AI and Customer do not reach an agreement to resolve the claim within 30 days after the Arbitration Notice is received, Customer or KRATEO.AI may commence an arbitration proceeding by thereafter filing a copy of the Demand with the American Arbitration Association (“AAA”) at the AAA office nearest to the hearing location specified below (“Arbitration Notice Address”).
American Arbitration Association. The arbitration will be governed by the Commercial Arbitration Rules (collectively, “AAA Rules”) of the AAA, as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879 during normal business hours, or by writing to the Arbitration Notice Address. Unless otherwise agreed to, all arbitration proceedings shall be held in English. The arbitrator is bound by the terms of this Agreement, which shall govern over the AAA Rules and the FAA. Except as provided in Section 13.4(d), below, all issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this Arbitration Agreement. Unless the Parties agree otherwise, any in-person arbitration hearings will take place in Houston, Texas, or as the arbitrator may determine is mutually convenient for the Parties.
Telephonic/In-Person Hearing. If the Demand is for US$10,000 or less, the arbitration will be conducted, at the option of the Party that made the first Demand, solely on the basis of documents submitted to the arbitrator, or through a telephonic hearing or, where the Parties are represented by a spokesperson or attorney of their own choosing, through a hearing by videoconference. If the Demand exceeds US$10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall have the authority to require and supervise the exchange of relevant information, grant motions dispositive of all or part of any claim, to award monetary damages, and to grant any non-monetary remedy or relief available to a single individual or entity (and not a class or as a private attorney general) under applicable law, the AAA Rules and this Agreement. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The Parties agree to maintain the confidentiality of all communications and documents related to any arbitration unless otherwise required by law. For the avoidance of doubt, the foregoing shall not prevent a Party from submitting to a court of law information necessary to enforce this Agreement or an arbitration award, or to seek injunctive or equitable relief as may be permitted by this Agreement.
Claims Only In Individual Capacity. THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both Parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with Customer’s claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. If a court decides that applicable Law precludes enforcement of any of this subsection’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.
Changes to Arbitration Agreement. If KRATEO.AI makes any changes to this Arbitration Agreement (other than a change to its Arbitration Notice Address or other contact information), Customer may reject any such change by sending KRATEO.AI written notice within 30 days of the change to KRATEO.AI at its address specified in Section 13.4(b). By rejecting a future change, Customer is agreeing that Customer will arbitrate any dispute between the Parties in accordance with the language of this Arbitration Agreement, as modified by any changes that Customer did not reject.
13.5. Entire Agreement, Execution, and Modification.
This Agreement supersedes all prior agreements and representations between the Parties regarding the subject matter of this Agreement. The terms and conditions contained in any Order issued by Customer will be of no force or effect, even if the Order is accepted by KRATEO.AI. KRATEO.AI may make changes to these Terms of Service from time to time. If KRATEO.AI makes a material change to any of the foregoing, KRATEO.AI will inform Customer by e-mail to the e-mail address(es) noted on the Order (or subsequently designated by Customer in writing as a contact for notifications from KRATEO.AI), or through a banner or other prominent notice within the SaaS Products, or through the KRATEO.AI support platform. If Customer does not agree to the change, Customer must so notify KRATEO.AI by e-mail to contract-notices@KRATEO.AI.com within thirty (30) days after KRATEO.AI’s notice. If Customer so notifies KRATEO.AI, then Customer will remain governed by the most recent terms of service applicable to Customer until the end of the then-current year of the Subscription Term and the updated terms shall apply upon the commencement of the subsequent Subscription Term. These SaaS Terms of Service are amended and supplemented with respect to Customer’s use, title, acquisition, installation and warranty for KRATEO.AI’s hardware appliances, namely KRATEO.AI’s smart door readers, referenced in the KRATEO.AI Hardware Addendum found at www.KRATEO.AI.com/Hardware-Addendum.pdf.
13.6. Severability and Waiver.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the Parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either Party to enforce any rights granted to it hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
13.7. Definitions.
The following definitions apply in this Agreement:
“Affiliate” means a company controlling, controlled by, or under common control with a Party (an entity will be deemed to have control if it owns over 50% of another entity).
“Agents” means KRATEO.AI’s proprietary reader Software, systems and locally-installed software agents and connectors that interact with the SaaS Products as may be provided by KRATEO.AI in connection with the SaaS Products.
“Applicable Data Protection Laws” means all applicable privacy and data protection laws, their implementing regulations, regulatory guidance and secondary legislations, each as updated or replaced from time to time, including: (a) the General Data Protection Regulation (EU 2016/679) (the “GDPR”) and any applicable national implementing laws; (b) the UK General Data Protection Regulation (“UK GDPR”) and the UK Data Protection Act 2018; (c) the Privacy and Electronic Communications Directive (2002/ 58/ EC) and any applicable implementing laws, including the Privacy and Electronic Communications Regulations 2003 (SI 2003/ 2426) (“EC Directive”); and (d) any other laws that may be applicable.
“Authorized Users” means employees, agents, consultants, contractors, or vendors authorized by Customer to use the SaaS Products solely for the internal use of Customer and its Affiliates, subject to the terms and conditions of this Agreement.
“Channel Partner” means a third-party business entity that KRATEO.AI has appointed as an approved partner to as applicable, distribute, re-sell and support the SaaS Products.
“Confidential Information” means all information provided by the disclosing Party to the receiving Party concerning the disclosing Party or its Affiliates’ business, products or services that is not generally known to the public, including information relating to customers, vendors, trade secrets, prices, products, services, computer programs and other intellectual property and any other information which a Party should reasonably understand to be considered Confidential Information whether or not such information is marked “Confidential” or contains such similar legend by the disclosing Party at the time of disclosure.
“Customer Data” means all data and/or content uploaded to the SaaS Products by Customer (including where applicable Authorized Users), and in all data derived from it. For the avoidance of doubt, Customer Data does not include Usage Data.
“Documentation” means the user guides, installation documents, and specifications for the SaaS Products that are made available from time to time by KRATEO.AI in electronic or tangible form and found at docs.KRATEO.AI.com, including the documentation located therein under the ‘Security’ section for the relevant SaaS Products, but excluding any sales or marketing materials.
“Equipment” means third party electromagnetic door latches or locks, smartcards, smartcard readers, mobile phones and other physical devices or apparatus that Customer or other third parties are permitted by KRATEO.AI to use for interacting with use of the SaaS Products.
“Indirect Order” means an Order for the Software or Services from a Channel Partner of Customer’s choosing pursuant to an independent commercial agreement.
“Indirect Taxes” means excise, sales, use, value added, goods and services tax or other similar types of indirect taxes on revenues, duties, customs or tariffs (however designated, levied or based and whether foreign or domestic, federal, state or province).
“Intellectual Property” means a Party’s proprietary material, technology, or processes (excluding the SaaS Products and Documentation), including services, software tools, proprietary framework and methodology, hardware designs, algorithms, objects and documentation (both printed and electronic), network designs, knowhow, trade secrets and any related intellectual property rights throughout the world (whether owned or licensed by a third party) and any derivatives, improvements, enhancements or extensions of such Intellectual Property conceived, reduced to practice, or developed.
“Notice” means any notice or other communication required or permitted under this Agreement.
“Order” means KRATEO.AI’s quote accepted by Customer via Customer’s purchase order or other ordering document received by KRATEO.AI (directly or indirectly through a Channel Partner) to order KRATEO.AI’s SaaS Products, which references the SaaS Products, pricing, payment terms, quantities, expiration date and other applicable terms set forth in an applicable KRATEO.AI quote or ordering document.
“OSS Licenses” means the respective open source licenses that the Third-Party Materials are subject to.
“Prohibited Persons” means anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list.
“SaaS Products” means the KRATEO.AI software-as-a-service and KRATEO.AI products enabled by or through the service, including but not necessarily limited to KRATEO.AI’s physical smart door readers, as specified in the Order and as further described in the Documentation (including any updates and upgrades to the SaaS Products provided by KRATEO.AI in its sole discretion, and any KRATEO.AI web-based managed portal, Software, systems and locally-installed software agents and connectors that interact with the SaaS Products as may be provided by KRATEO.AI in connection with the SaaS Products), provided that any free or special trial use of SaaS Products, proof of concept of the SaaS Products, beta version of the SaaS Products, or any other free-of-charge or special trial use fee for use of the SaaS Products will be subject to Section 1.4 of this Agreement.
“Software” shall have the meaning set forth in the KRATEO.AI Software License Agreement.
“Subscription Term” means the period of time during which Customer is subscribed to the SaaS Products, as specified in an Order and which shall begin upon access to or delivery of the SaaS Products.
“Suggestions” means, any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements or changes to the SaaS Products suggested by Customer to KRATEO.AI, excluding any Customer Data and Customer Intellectual Property.
“Support Services” means the maintenance and technical support services for the SaaS Products provided by KRATEO.AI to Customer as part of an active SaaS Products subscription, set out at https://www.KRATEO.AI.com/maintenance-support-terms.pdf.
“Third-Party Materials” means open source software programs that are made available by third parties under their respective OSS Licenses.
“Usage Data” means data generated in connection with Customer’s access, use and configuration of the SaaS Products and data derived from it (e.g., types of applications or accounts utilized or interacting with the SaaS Products).
