NOTICE: IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE COMPANY TO THIS AGREEMENT, AND THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU OR THE COMPANY DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT ACCEPT IT OR ORDER AGAINST IT.
1. Contracting Entities and Formation
1.1 Contracting Entities. “Customer” or “You” The entity that accepted the terms of this MLA online or placed an order to Krumware against the Transaction Document to which this MLA is attached. “Krumware” means Krumware LLC.
1.2 Customer as a Distributor or Reseller. If Customer is a distributor authorized by Krumware to resell the Krumware Offerings to a reseller, Customer must include in its contract with each reseller: (i) compliance with the terms of this MLA by the reseller as a condition of the resellers purchase; (ii) an obligation on the reseller to ensure that compliance with the terms of this MLA is included as a condition in its sale contracts with End Customers; and (iii) ensure that the condition in (i) and (ii) is in each case expressed as being for the benefit of Krumware and directly enforceable by Krumware. If Customer is authorized by Krumware to resell the Krumware Offerings directly to End Customers, Customer must include in its contract with each End Customer compliance with the terms of this MLA by the End Customer as a condition of the that customer’s purchase and ensure that condition is expressed as being for the benefit of Krumware and directly enforceable by Krumware. Nothing in this Section authorizes Customer to disclose pricing information, which is at all times Krumware’s Confidential Information. Customer must, upon written request from Krumware, provide written evidence to Krumware that any such reseller or End Customer, as applicable, purchasing Krumware Offerings purchased by Customer under this MLA has agreed to be bound by the terms of this MLA. As incorporated into the purchase contract with a reseller or an End Customer, an obligation expressed in this MLA as being that of the Customer shall be deemed to be that of the reseller or End Customer.
1.3 Formation. The Agreement is effective between Customer and Krumware as of: (i) the date of its final signature by both parties; (ii) the date the Customer accepts the online Subscription Terms into which this MLA is incorporated; or (iii) the date an order is placed to Krumware against the Transaction Document referencing the Subscription Terms into which this MLA is incorporated, whichever is earliest (the “Effective Date”).
2. Purpose This Master License Agreement (“MLA”) and its schedules describe the terms and conditions under which Customer may access and receive the benefit of Krumware Offerings for its own internal use and benefit. These terms do not apply to, and do not allow, any other use of Krumware Products or services, including, without limitation, the sale or distribution of Krumware products on a standalone basis, the integration of Customer’s products with Krumware’s, or the provision of services using Krumware Products or services.
3. Structure
3.1 MLA Components
This MLA comprises the following components:
3.2 Terms and Conditions The terms and conditions that apply to any use of the Krumware Offerings and Krumware Products.
3.3 Schedule 1 - Payment Metrics, Reporting and Invoicing.
3.4 Schedule 2 - Usage Rights.
3.5 Schedule 3 - Product Specific Terms.
3.6 The Krumware Subscription Terms, which describe the support services provided by Krumware, as available at https://www.krum.io/ from time to time (the “Subscription Terms”), the terms of which are incorporated into this MLA.
3.7 The Krumware Professional Services Terms, which describe the terms on which Krumware may provide professional services to the Customer, as available at https://www.krum.io, the terms of which are incorporated into this MLA (“PSA”).
3.8 The Krumware End User License Agreement, as available at https://www.krum.io/legal/eula.
3.9 If there is a conflict between the terms of any constituent part of the Agreement, the following order of precedence will apply: (1) the Transaction Document; (2) the schedules to this MLA, in the order they are attached to this MLA; and (3) the terms and conditions of this MLA.
4. Affiliates
A Customer Affiliate may access and use the Krumware Offerings only as follows:
4.1 Participation Agreement: A Krumware entity agrees to enter into a Participation Agreement with a Customer Affiliate under which that Customer Affiliate may purchase Krumware Offerings. The Participation Agreement will be an independent contract between Customer’s Affiliate and the relevant Krumware entity, which is subject to the terms of this MLA
4.2 Customer as a managing or procurement entity. Customer may purchase Krumware Offerings and deploy Krumware Products on behalf of the Customer Affiliate, in which case: (a) Customer is responsible for compliance with this MLA and the payment of all Fees for the use by its Affiliates; (b) Customer agrees that Krumware will deliver the Krumware Product to Customer in the Territory (not to the Customer Affiliate) and (c) Customer remains responsible for the onwards provision of the Krumware Products and services to its Affiliates, and indemnifies Krumware against any taxes associated with such onwards provision.
5. Ordering Krumware Products and Subscription Offerings
The Krumware Offerings to be provided by Krumware will be as specified in a Transaction Document. Subscription fees are calculated on an annual basis, and all Fees are due and payable in advance. You must place an order for the appropriate renewal Krumware Subscription Offerings, with Krumware or a reseller, as applicable, prior to the expiration date of Your then-current Subscription Offerings.
6. Krumware Services Offerings
You may order services, such as Consulting Services or Training Services, via a Transaction Document as mutually agreed upon.
7. Individual Agreement
This MLA governs the purchase of the Krumware Offerings specified in the Transaction Document into which this MLA is incorporated. The Transaction Document incorporates the terms of this MLA, together with attached schedules, and any amendments entered into between the Parties in writing (together, the “Agreement”). The pricing applicable to those purchases (and period of validity and/or quantities for that pricing, if any) is as specified in the Transaction Document and applies only to that purchase. As incorporated into a Transaction Document, a reference in this MLA to the “Agreement” means a reference to that Transaction Document only.
8. Licensing
The Krumware Products are licensed under the EULA, the terms of which are incorporated into this MLA.
9. Usage Rights with Respect to Support Services
Customer may use the Krumware Offerings and Krumware Products, in the Territory and during the term of a Subscription Offering purchased under this MLA for Internal Use, solely as permitted by Schedule 2 (Usage Rights), as may be amended or replaced in a Transaction Document. The rights set out in this Section and in Schedule 2 (Usage Rights) (or in a Transaction Document, as applicable) are the “Usage Rights”.
10. No-Redistribution
Customer must not use or distribute the Krumware Offerings or Krumware Products. Without limiting the foregoing, except where Customer is authorised as a distributor or reseller under a separate agreement, Customer must not: (i) sell, resell or otherwise distribute Krumware software, Krumware Products or Krumware Offerings on a stand-alone basis; or (ii) distribute or make available the benefits of the Krumware Offerings (including without limitation, access to support, maintenance and/or Updates) to third parties on a standalone basis, or otherwise provide access to the Krumware Offerings to third parties, in each case for the third party’s benefit. Customer may permit a third party provider of outsourced information technology services to access and use the Krumware Offerings solely to the extent necessary to perform its contractual obligations to Customer, provided that: (a) the third party is bound by the terms of this Agreement in respect of such use and access; and (b) Customer remains responsible for the acts and omissions of the third party with respect to such use and access.
11. Customer Responsibilities
11.1 Testing. Customer is responsible for testing the Krumware Products, Updates, patches and any other software or process obtained from Krumware, before: (i) deploying them in the Customer’s production environment; (ii) using them to process live data; or (iii) incorporating them into processes that could impact Customer business or data subjects.
11.2 Security and Backup. Customer acknowledges and agrees that whilst Krumware Products and/or Krumware Offerings may contain features designed to improve the overall security of the Customer’s environment, the Customer is solely responsible for implementing, and shall implement, appropriate measures to protect the security, integrity, and accuracy of its systems and data. Without limiting the foregoing, Customer must (i) back up Customer’s data and systems on a regular basis, and make those backups available to Krumware if needed for support purposes; (ii) implement business continuity and disaster recovery measures; and (iii) implement physical and logical access controls, firewalls, malicious code scanning and detection measures, intrusion detection systems and regular security patches, in addition to Krumware Products and Krumware Offerings, in each case, in accordance with industry practice for the Customer’s business and as appropriate having regard to the Customer’s risk. If Customer sustains a data loss and/or system outage, Customer is solely responsible for recovering and restoring its systems and data. Krumware Support does not include data migration or data recovery support or remote access by Krumware personnel to Customer’s network and/or systems; Where Krumware personnel will access Customer systems and data, Customer must implement appropriate industry standard safeguards in accordance with least privilege principles.
11.3 Applying Updates
Customer must apply Updates provided by Krumware as soon as possible after Krumware makes them available to Customer.
12. Fees and Payment
12.1 Payment terms. Fees are as set out in a Transaction Document (or are based on a Krumware buying program that is referred to in the Transaction Document) and are calculated in accordance with the pricing metrics specified in Schedule 1 (Payment Metrics, Reporting and Invoicing). Krumware will invoice Customer at the frequency specified in Schedule 1 (Payment Metrics, Reporting and Invoicing). Customer will pay fees, except those disputed in good faith, within the timeframe specified in Schedule 1 (Payment Metrics, Reporting and Invoicing). If any of the provisions of Schedule 1 (Payment Metrics, Reporting and Invoicing) are replaced in a Transaction Document, the version of Schedule 1 in that Transaction Document will prevail. Invoices not paid when due under the Agreement will accrue interest from the date due to the date fully paid at the lesser of the rate of 1% per month and the highest rate allowed by applicable law. Fees are non-refundable unless You terminate for uncured material breach pursuant to Section 22.3, in which case Krumware will provide a pro-rata refund of any prepaid Fees in respect of the time period that follows the effective date of termination.
12.2 Taxes. All fees are exclusive of all applicable taxes. Customer will pay and bear the liability for taxes associated with activities under this MLA and any Schedule(s), including sales, use, excise, and added value taxes, but excluding taxes based upon Krumware’s net income, capital, or gross receipts. If Customer is required to withhold tax as required by law: (i) this will be subject to the application of any reduced rate allowed in an income tax treaty; (ii) Customer will request all documentation required for the reduction of withholding tax; and (iii) Customer will provide to Krumware a valid government receipt documenting the withholding or deduction as applicable. If Krumware is required by law to remit any tax or duty on Customer’s behalf or for Customer’s account upon delivery, Customer agrees to reimburse Krumware within thirty (30) days after Krumware notifies Customer in writing of such remittance. Should Customer determine that the supply should be exempt from transaction taxes, Customer will provide Krumware with valid tax exemption certificates in advance of placing an order where such certificates are applicable. Except as expressly otherwise agreed in writing, all payments are non-refundable.
13. Records and Verification
During the term of this MLA and for two years afterward, Customer must keep complete and accurate records of all copying and use of Krumware Products and Krumware Offerings. During this period, Krumware has the right to verify Customer’s compliance with the Agreement. Customer agrees to: (a) implement internal safeguards to prevent any unauthorized copying, distribution, installation, or use of, or access to, the Krumware Products and/or Krumware Offerings; (b) keep records sufficient to demonstrate compliance with the Agreement (all such records being the “Records”). Within 30 days after Krumware’s written request, Customer will allow a Krumware representative (which may be Krumware personnel or an independent auditor) (each an “Auditor”) to inspect the Records either remotely or on Customer’s premises, and the systems (or portions of those systems) to which those Records relate, in each case, only to the extent necessary to enable Krumware to verify compliance with the Agreement. Krumware’s rights under this Section are subject to the following conditions: (i) the Auditor must be bound by a confidentiality agreement which contains confidentiality obligations equivalent to those in this MLA; (ii) the Auditor will comply with Customer’s reasonable security and physical safety procedures whilst on Customer premises; and (iii) the Auditor will not be entitled to access any system or data that does not concern Customer’s deployment of Krumware Products or access to Krumware Offerings. If an audit or information available to Krumware reveals that Customer has not complied with its obligations under this MLA and this has resulted in an under-payment to Krumware, Krumware may invoice Customer for the value of the required Subscription Offerings at the then-current full list price, together with late payment interest calculated at the rate of 8% per annum, without benefit of any otherwise applicable discount in respect of the period reflecting the duration of the shortfall. Customer will pay such invoice within the payment terms specified in Schedule 1 (Payment Metrics, Reporting and Invoicing). Information obtained or disclosed pursuant to this Section is Confidential Information subject to the obligations of confidentiality set out in Section 21, except that Krumware may use and disclose such information to the extent necessary to enforce its rights under the Agreement.
14. Technical Usage Data
Krumware retains the right to collect and generate technical usage data relating to Customer’s deployments of Krumware Products, including error logs, network architectures, usage patterns, update status and the systems on which the Krumware Products are deployed, but in each case, excluding personal data (together, the “Technical Usage Data”). Krumware may collect Technical Usage Data: (a) by way of Customer’s use of certain Krumware Products, where such Krumware Products collect the Technical Usage Data; or (b) by requiring Customer to install or use a tool that captures the Technical Usage Data and provide that Technical Usage Data to Krumware. As a condition of Customer’s use of and access to the Krumware Offerings, Customer agrees that Krumware may collect and generate Technical Usage Data as described in this Section and that Krumware may use, store, analyze, and aggregate the Technical Usage Data solely for the purpose of: (i) performing its obligations under the Agreement; (ii) improving the services Krumware provides to customers; (iii) developing new products and services for customers; and (iv) monitoring Customer’s and/or the End User’s compliance with the applicable contractual terms. Krumware warrants that Technical Usage Data does not include personal data or personally identifiable information. To the extent Technical Usage Data contains information that identifies the Customer, its End Users, or otherwise contains Customer’s Confidential Information, the obligations of confidentiality set out in Section 21 shall apply. Customer represents and warrants that it has obtained all necessary consents and permissions required to enable it to grant the permissions set out in this Section 14.
15. Intellectual Property
No title to or ownership of the intellectual and industrial property rights related to the Krumware Products and/or any Krumware Offerings is transferred to the Customer, or otherwise acquired by the Customer, under this MLA.
16. Krumware Representations and Warranties
Krumware warrants that: (a) it has the authority to enter into the Agreement; (b) in the provision of the Krumware Offerings, Krumware will comply with laws applicable to Krumware as the provider of the Krumware Offerings; and (c) it will perform its obligations under the Agreement with reasonable skill and care. EXCEPT AS OTHERWISE RESTRICTED BY LAW, Krumware, ON BEHALF OF ITSELF AND ITS AFFILIATES AND AGENTS (COLLECTIVELY “THIRD PARTIES”), DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. KRUMWARE AND THIRD PARTIES MAKE NO WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THE AGREEMENT. NEITHER KRUMWARE NOR ITS THIRD PARTIES WARRANT THAT: (1) THE KRUMWARE PRODUCTS, SOFTWARE OR SERVICES WILL SATISFY CUSTOMER’S OR END USERS’ REQUIREMENTS; (2) THAT THE OPERATION OF THE KRUMWARE PRODUCTS AND SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE; OR (3) USE OF THE KRUMWARE PRODUCTS, KRUMWARE OFFERINGS OR SOFTWARE WILL PREVENT, DETECT OR REMEDY ALL NETWORK INTRUSIONS AND SECURITY VULNERABILITIES. KRUMWARE AND THIRD PARTIES RESERVE ALL RIGHTS NOT EXPRESSLY GRANTED HEREIN AND GRANT NO ADDITIONAL RIGHTS, LICENSES, OR COVENANTS BY IMPLICATION, ESTOPPEL, OR OTHERWISE.
17. Customer Warranties
Customer warrants that: (a) Customer has the authority to enter into the Agreement, and (b) Customer’s use of the Krumware Products and Krumware Offerings will comply with the laws applicable to Customer.
18. Liability
18.1 DISCLAIMER OF DAMAGES. NEITHER PARTY, NOR ITS AFFILIATES, WILL BE LIABLE FOR (A) LOSS OF REVENUES, LOSS OF (OR DIMINUTION IN) PROFITS, LOSS OF GOODWILL, OR LOSS OR CORRUPTION OF DATA, IN EACH CASE WHETHER DIRECT OR INDIRECT; OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, IN EACH CASE, WHETHER ARISING UNDER ANY LEGAL OR EQUITABLE THEORY OR ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
18.2 AGREEMENT LIABILITY CAP. THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES WITH RESPECT TO ALL CLAIMS RELATING TO OR ARISING OUT OF EACH AGREEMENT, INCLUDING ALL PARTICIPATION AGREEMENTS INCORPORATING THE AGREEMENT, SHALL BE LIMITED TO: (1) IN THE CASE OF CLAIMS CONCERNING A KRUMWARE OFFERING, THE GREATER OF: (A) THE AMOUNTS RECEIVED BY KRUMWARE IN RESPECT OF THE RELEVANT KRUMWARE OFFERING IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT GIVING RISE TO THE FIRST CLAIM UNDER THE AGREEMENT INCLUDING ANY PARTICIPATION AGREEMENT INCORPORATING IT; AND (B) FIVE THOUSAND U.S DOLLARS (USD 5,000); AND (2) FOR ALL OTHER CLAIMS, FIVE THOUSAND U.S DOLLARS (USD 5,000). 18.3 MITIGATION & EXCUSE. EACH PARTY SHALL MITIGATE ALL LOSSES THAT IT SEEKS TO RECOVER UNDER OR IN CONNECTION WITH THIS AGREEMENT. KRUMWARE SHALL NOT BE LIABLE TO CUSTOMER FOR LOSS OR DAMAGE RESULTING FROM, OR TO THE EXTENT INCREASED BY, CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT. 18.4 EXCLUSIONS FROM LIMITATIONS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY SCHEDULE, NOTHING IN THIS AGREEMENT LIMIT OR EXCLUDES LIABILITY FOR THE FOLLOWING: (A) DEATH OR PERSONAL INJURY CAUSED BY ITS NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; (C) ANY OTHER LIABILITY THAT CANNOT BE LAWFULLY EXCLUDED OR LIMITED; OR (D) CUSTOMER’S OBLIGATION TO MAKE PAYMENT OF FEES DUE AND PAYABLE UNDER THIS AGREEMENT.
19. Krumware Indemnification
19.1 Indemnity. Krumware will indemnify You from and against damages, costs and expenses (including reasonable attorneys’ fees) finally awarded against You (or approved by Krumware in a settlement) in favour of a third party, resulting from a claim by that third party alleging that the Krumware Offerings infringe the trademarks or copyrights of such third party (the “IP Owner”). In order to benefit from the indemnity in this Section, You must notify Krumware promptly, but no later than ten (10) days of receipt of the claim, give Krumware control of the defense and related settlement negotiations, and provide Krumware with the reasonable assistance (at Krumware’s cost) in defending the claim. You will make best efforts to mitigate any losses and consequences of an infringement to the extent possible.
19.2 Repair and Replace. If a Krumware Offering is held to infringe and its use is prohibited or if, in Krumware’s reasonable opinion, is likely to become the subject of an infringement claim, You will permit Krumware, at Krumware’s option and expense, to (a) procure for you the right to continue to use the Krumware Offering, or (b) replace or modify it so that it becomes non-infringing and has the same or additional functionality and comparable or improved performance characteristics, provided that if the measures at (a) and/or (b) are not available on a basis that Krumware finds commercially reasonable, Krumware may terminate the applicable Krumware Offering without further liability under this MLA and, upon Your discontinued use of the infringing Krumware Offering, refund to You the amount paid for the unused portion of the term of the Krumware Offering as of the effective date of said termination.
19.3 Exceptions to Krumware’s Indemnification Obligation. Krumware will have no obligation of defense or indemnity: (a) if at any time You were in breach of this Agreement; (b) in respect of any claim arising after Your last active Subscription Offering has expired; or (c) to the extent the infringement claim arises from: (i) Your designs, specifications or instructions; (ii) use of a version other than the current release of the Krumware Products, if the infringement would have been avoided by use of the current release; (iii) Your failure to promptly implement a patch provided by Krumware, if the infringement would have been avoided by use of that patch; (iv) a modification of the Krumware Offering and/or Krumware Product not requested or authorized in writing by Krumware; (v) use of the Krumware Product and/or a Krumware Offering with non-Krumware software, equipment, or data, other than as specified or approved by Krumware in writing; (vi) the furnishing to You of any information, service, or technical support by a third party; or (vii) the incorporation of the Krumware Product or Krumware Offering into Customer’s products or services; or (viii) Your use of the Krumware Product, Krumware Offering otherwise than for Internal Use.
19.4 Sole Remedy. This Section 19 states the sole remedy of Customer and exclusive obligation of Krumware regarding any claim of infringement or misappropriation of any third party’s intellectual property rights.
20. Customer Indemnification
Customer will indemnify Krumware from and against damages, costs, and expenses (including reasonable attorneys’ fees) incurred by Krumware or its Affiliates arising from a claim by any third party resulting from Customer’s distribution of the Krumware Offerings or Customer’s provision of services using or incorporating the Krumware Offerings or Krumware Products. The indemnity in this Section will not apply to claims against Krumware brought by the IP Owner in respect of which Krumware is required to indemnify Customer under Section 19.
21. Confidentiality
“Confidential Information” means the terms of this MLA, the Agreement and any other information that:(i) if disclosed in tangible form, is marked in writing as confidential, (ii) if disclosed orally or visually, is designated orally at the time of disclosure as “confidential”, (iii) pricing information; or (iv) by the nature of the information or the circumstances surrounding its disclosure, would reasonably be considered confidential. Confidential Information will not include information (a) already in the receiving party’s possession without obligation of confidence; (b) independently developed by the receiving party; (c) that becomes available to the general public without breach of this MLA; (d) rightfully received by the receiving party from a third party without obligation of confidence; (e) released for disclosure by the disclosing party with its written consent; and (f) licensed under an open source license (as defined by the Open Source Initiative (https://opensource.org/)). The receiving party of Confidential Information will hold and maintain such Confidential Information in confidence and use at least the same degree of care to protect it that it uses to protect its own confidential information, but in no event less than reasonable care. The receiving party may disclose Confidential Information only to its employees or agents with a need to know such information and will inform such employees and agents by way of policy or agreement that they are bound by confidentiality obligations. These confidentiality obligations will survive three (3) years after expiration or termination of this MLA. The obligations in this section will not apply to information to the extent that information is required to be disclosed by law, regulation, or court order.
22. Term and Termination
22.1 Term of the MLA. This MLA will become effective on the Effective Date and continues for the term stated in the Transaction Document, subject to earlier termination as stated below.
22.2 Term of a Krumware Offering. The term of a Krumware Offering begins on the date specified in the Transaction Document and continues for the term stated in the Transaction Document. Subscription Offerings will automatically renew for successive terms of one (1) year each, unless either party gives written notice to the other of its intention not to renew at least ninety (90) days before the commencement of the next renewal term.
22.3 Termination for Cause. Either Party may terminate this MLA, the Agreement, a Krumware Offering or any Transaction Document, in whole or in part, by notice to the other party if: (i) the other party irremediably breaches the Agreement; or (ii) materially breaches the Agreement and does not cure the breach within thirty (30) days after written notice. Without limiting the foregoing, Krumware may suspend performance of its obligations and/or terminate the Agreement, a Krumware Offering or any Transaction Document, in whole or in part, if Customer fails to meet its payment obligations and this failure continues for ten (10) days following receipt of written notice from Krumware.
22.4 Effect of Termination. Termination of this MLA will not affect any pre-termination obligations of either party under the Agreement. The provisions of the Agreement that by their nature extend beyond the expiration date or other termination of the Agreement will survive and remain in effect until all obligations are satisfied.
22.5 Effect of Termination on Usage Rights. If Krumware terminates the Agreement for cause pursuant to Section 22.3, all Usage Rights in respect of all Krumware Offerings will terminate on the effective date of termination. If this MLA is terminated for any other reason or expires, or the last active Subscription Offering purchased under this MLA expires, the duration of Usage Rights following such termination or expiry are as set out in Schedule 2 (Usage Rights).
22.6 Survival. The provisions of this MLA, which by their nature extend beyond termination, will survive termination or expiration of this MLA.
23. Governing Law and Jurisdiction
23.1 Generally. Except as specified in Sections 23.2 and 23.3: (1) this MLA is governed by, construed in accordance with, and enforced under the substantive law of the State of South Carolina, USA, without giving effect to any contrary choice of law or conflict of law provision or rule (whether of the State of South Carolina or other jurisdiction); and (2) any dispute, claim, action, or proceeding arising out of or relating to the Agreement (“Proceeding”) may only be brought before a federal or state court of appropriate jurisdiction in South Carolina. In any Proceeding, each of the parties irrevocably waives the right to trial by jury.
23.2 UK, EU, EFTA. If Customer’s country of principal residence is the United Kingdom, or a member state of the European Union or the European Free Trade Association, (1) this MLA is governed by and construed in accordance with the laws of England and Wales; and (2) any Proceeding will be submitted to the exclusive jurisdiction of the courts of England and Wales.
24. Compliance
24.1 Privacy & Security. Each party will comply with all privacy and security laws applicable to its business. Without limiting this, Krumware’s privacy policy (https://www.krum.io/legal) applies to Customer’s use of the Krumware Offerings.
24.2 Export Compliance. Any products or technical information provided under this MLA may be subject to U.S. export controls and the trade laws of other countries. The parties agree to comply with all applicable export control regulations and to obtain any required licenses or item classification to export, re-export or import deliverables. The parties agree not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist supporting countries as specified in the Export Administration Regulations (EAR). The parties will not use deliverables for prohibited nuclear, missile, or chemical biological weaponry end uses as specified in the EAR. Please consult the Bureau of Industry and Security web page: www.bis.doc.gov before exporting or re-exporting items subject to the EAR. Refer to: www.krum.io/legal for more information on exporting Krumware Products. Upon request, Krumware can provide information regarding applicable export restrictions. However, Krumware assumes no responsibility for Customer’s failure to obtain any necessary export approvals.
24.3 Anti-Corruption Laws. Each party and its Affiliates and any other persons performing any activities related to this MLA, will comply with all applicable anti-corruption laws and regulations, such as the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act, and will not engage in conduct that would cause the other party to violate any law or regulation including anti-corruption Laws. Neither party nor its officers, employees, agents or subcontractors will offer, promise, give, request, accept or agree to accept from any person (whether for themselves or on behalf of another) any advantage, gift, payment, consideration or benefit of any kind that is intended to influence a decision or gain advantage or that otherwise constitutes a bribe and/or an illegal or corrupt practice under the applicable laws of any country, either directly or indirectly in connection with this MLA or the business of Krumware (“the Anti-Corruption Obligation”). Each party will disclose in writing to the other details of any breach or alleged breach of the Anti-Corruption Obligation. A party may terminate this MLA immediately upon written notice to the other in the event of a breach or suspected breach of the Anti-Corruption Obligation by the other party.
24.4 Krumware Policies. You agree that your access to and use of the Subscription Offerings will be subject to, and You agree to at all times comply with, the Krumware policies available at https://www.krum.io/legal as updated from time to time.
24.5 Krumware Trade Marks. Customer will not alter, erase or overprint any notice provided by Krumware and not to attach any additional trademarks without the prior written consent of Krumware or to affix any Krumware Marks to any non-Krumware product. Customer recognizes Krumware’s ownership and title to the trade names and Marks and the goodwill attaching to the trade names and Marks. Any goodwill which accrues because of its use of the trade names and/or Marks will become Krumware’s property. Customer will not: (i) apply for registration of any Krumware Marks or trade names without Krumware’s prior written consent; or (ii) use, employ or attempt to register any trademarks, trade names, or domain names that are confusingly similar to Krumware’s Marks or trade names.
25. Miscellaneous
25.1 Delivery. Krumware software and keys will be delivered to Customer in binary (electronic) format through electronic software distribution. For a Krumware Product that you obtain directly from Krumware or indirectly from Krumware, all rights, title, and interest (including beneficial ownership and the risk of loss) of the copy of the keys and such Krumware Product shall be deemed to transfer to Customer at the location of download and completed installation onto the end-user’s device used to access the key and Krumware Product.
25.2 Superior Agreement. The Agreement comprises the whole agreement between the parties and supersedes all prior oral and written representations or agreements between the parties relating to the subject matter contained herein. The Agreement will not be supplemented or modified, including by any course of dealing or usage of trade or any terms in a Customer’s purchase order, except as documented in a written document signed by each party, or as set out in a Transaction Document.
25.3 Severability/Waiver. If a provision is invalid or unenforceable, the remaining provisions will remain in effect, and the parties will amend the Agreement to reflect the original agreement to the maximum extent possible. No waiver of any contractual right will be effective unless in writing by an authorized representative of the waiving party. No waiver of a right arising from any breach or failure to perform will be deemed a waiver of any future right.
25.4 Transfer and Assignment. The Agreement may not be transferred or assigned without the prior written approval of the other party; any other transfer or assignment or attempted transfer or assignment will be null and void.
25.5 Force Majeure. Neither party will be liable for delay or failure to perform that arises out of causes beyond the reasonable control and without the fault or negligence of such party. A party will give prompt notice of any condition likely to cause any delay or default. Upon the occurrence of any of the foregoing, the date of performance will be deferred for a period of time equal to the time lost by reason of the delay. Section 25.5 does not relieve either party of its obligation(s) to make payments.
25.6 Changes to this MLA. From time to time, Krumware may make changes to this MLA, including changes to the Subscription Terms and the Subscription Offerings as set out in the Krumware Subscription Terms. If Your Subscription Offerings are renewed or You acquire new Subscription Offerings, You agree that the most recent version of this MLA (including changes to Krumware Offerings set out in the Krumware Subscription Terms) governs all of your Krumware Offerings prospectively.
25.7 Notices. Notices given under this MLA must be in writing. Notices to Krumware will be sent by email and post to the addresses provided in Section 1 (as may be updated in writing to the other Party). Notices to Customer will be sent to the Customer address stated in this MLA or, if not stated, to its registered address (or for US-based entities, its headquarters address).
26. Definitions
Capitalized terms that are used but not defined in this MLA have the meaning given to them in the Subscription Terms:
26.1 Affiliate means any person or entity directly or indirectly controlling, controlled by or under common control with a party, for so long as that relationship is in effect (including affiliates subsequently established by acquisition, merger or otherwise).
26.2 Agreement has the meaning given in Section 7.
26.3 Consulting Services means the delivery of specialized activities, such as project-based activities, or consulting services charged on, e.g., a time and materials basis.
26.4 Effective Date has the meaning given in Section 1.3.
26.5 EMEA means Europe, the Middle East, and Africa.
26.6 External Use has the meaning given in Schedule 2 (Usage Rights).
26.7 Krumware Offering means Krumware-branded Services in the form of Support Services, Consulting Services, Training Services, and other services offered by Krumware, each as specified in a Transaction Document.
26.8 Krumware Marks means Krumware’s trademarks, service marks, service or trade names, logos, product names, or designations, whether registered or unregistered and whether in text or graphical format;
26.9 Krumware Product means: (1) a software product that Customer obtains directly from Krumware or indirectly from Krumware (for example, via a distributor or reseller), that is made available for download by Krumware on a trusted Krumware registry and for which Subscription Offerings are made available, including without limitation, all of the Krumware Products listed in the Subscription Terms; and/or (2) any other open-source software product in respect of which Krumware provides a support and maintenance offering for which Krumware charges fees, as specified at www.krum.io.
26.10 Participation Agreement or PA means an agreement signed by an Affiliate of Customer (that is located outside the Primary Region) and the relevant Krumware entity that incorporates by reference the terms and conditions of this MLA and named Schedule(s), exhibits or attachments specifically referenced in the PA, the form of which will be provided by Krumware if applicable.
26.11 Subscription Offering means a subscription-based Krumware Offering for a Krumware Product.
26.12 Subscription Terms has the meaning given in Section 3.6.
26.13 Support Services means the delivery of problem resolution and customer support activities by Krumware, as described in the Subscription Terms.
26.14 Territory means the geographic area as may be set forth in Schedule 2 (Usage Rights) or in a Transaction Document, provided that Territory will not include any countries to which a Krumware Product may not be exported under U.S. or other applicable export laws or regulations, from time to time.
26.15 Training Services means the delivery of onsite or remote training courses by Krumware.
26.16 Transaction Document means Krumware’s standard ordering document, a Krumware issued quote form referencing this Agreement as accepted by Customer by the placement of an order by Customer against it, a statement of work or any other document executed between Krumware and Customer (or their Affiliates in the case of a Participation Agreement) for the sale and purchase of a Krumware Offering.
26.17 Update means a fix or compilation of fixes released by Krumware to correct operation defects (program bugs) in a Krumware Product.
26.18 Upgrade means any new version of Krumware Product which bears the same product name, including version changes evidenced by a number immediately to either the left or right of the decimal. If a question arises as to whether a product offering is an Upgrade or a new product, Krumware’s opinion will prevail, provided that Krumware treats the product offering the same for its end users generally.
Schedule 1 - Payment Metrics, Reporting & Invoicing
1. Fee Calculation
Billing Period: Fees are payable in advance in respect of minimum increments of one year.
Fee Calculation: Customer must purchase, in advance of accessing Support Services, a Subscription Offering for every Unit of a particular Krumware Product to be installed or deployed by the Customer (all being “Deployed Units”). Customer must ensure that at all times during the term of any valid Subscription Offering for a particular Krumware Product purchased by Customer, Customer has purchased Subscription Offerings in respect of every Deployed Unit of that Krumware Product. Customer’s obligations under this section lapse, in respect of a Krumware Product, upon the expiry or termination of Customer’s last valid Subscription Offering for that Krumware Product.
2. Invoicing and Payment
Invoice Issued by Krumware: Following receipt of an order placed by Customer against the applicable Transaction Document.
Payment Terms: 30 days after receipt of invoice.
Currency of Invoice: As specified in the invoice.
Schedule 2 - Usage Rights
1. Internal Usage Rights
Permitted Scope: Customer may use the Krumware Offerings, in each case, solely for its own Internal Use. “Internal Use” means:
- The Krumware Product is deployed only on infrastructure, including standalone devices and edge infrastructure, in each case, owned or leased by the Customer, or managed by a third party exclusively on Customer’s behalf
- That infrastructure is used for Customer’s internal business purposes and neither the infrastructure nor the Krumware Offerings are, directly or indirectly, distributed or made available to third parties for their benefit
- The Customer does not use that infrastructure or the Krumware Offerings to provide services directly to third parties or for the benefit of third parties
Consequences of Termination On the effective date of termination of the Agreement:
- Customers (and all Affiliates if applicable) must cease accessing the Krumware Offerings.
- Customer’s rights to use Krumware Products deployed as of the effective date of termination will be governed by the EULA.