Edge Subscription Agreement
This Edge Subscription Agreement (together with its exhibits and the Order Form, the “Agreement”), effective as of the Start Date set forth below (the “Effective Date”), is by and between KSi Conveyor, Inc., an Illinois corporation with offices located at 2345 U Rd, Sabetha, KS 66534 (“KSi”), and you (“Customer”).
The parties agree as follows:
1. the Software, services, and receipt of any equipment is subject to terms and conditions of this agreement;
2. The following exhibits are attached to this agreement and constitute an integral part hereof (and any defined terms in any portion of the Agreement shall be used in all portions of this Agreement, unless otherwise defined in the applicable Exhibit):
a. Exhibit A: Sales Order Form;
b. Exhibit B: Software License Agreement;
c. Exhibit C: Support Services and Extended Warranty Agreement; and
3. Counterparts. This agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Payment of the subscription fee indicates your acceptance of this agreement.
Software License Agreement
This Support Services Agreement (the “Agreement”), effective as of the Start Date set forth in the Edge Subscription Agreement (the “Effective Date”), is by and between KSi Conveyor, Inc., an Illinois corporation with offices located at 2345 U Rd, Sabetha, KS 66534 (“KSi”), and Licensee.
KSi desires to license the Software described in Exhibit A attached hereto to Licensee. Licensee desires to obtain a license to use the Software for its internal business purposes, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration the Parties agree as follows:
“Authorized User” means an employee or contractor of Licensee who Licensee permits to access and use the Software and/or Documentation pursuant to Licensee’s license hereunder.
“Documentation” means KSi’s user manuals, handbooks, and installation guides relating to the Software provided by KSi to Licensee either electronically or in hard copy form.
“Software” means the product described in Exhibit A in object code format, including any Updates provided to Licensee pursuant to this Agreement.
“Updates” means any updates, bug fixes, patches, or other error corrections to the Software that KSi generally makes available free of charge to all licensees of the Software.
2.1 License Grant.
Subject to terms and conditions of this Agreement, KSi hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable (except in compliance with Section 12.7) license during the Term to: (i) use the Software solely for Licensee’s internal business purposes; and (ii) use and make a reasonable number of copies of the Documentation solely for Licensee’s internal business purposes in connection with Licensee’s use of the Software.
2.2 Use Restrictions.
Licensee shall not use the Software or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; or (v) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.3 Reservation of Rights.
KSi reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Software.
KSi shall deliver the Software pre-installed on the KSi equipment, electronically, on tangible media, or by other means, in KSi’s sole discretion, to Licensee in accordance with the invoice.
3 Licensee Responsibilities.
Licensee is responsible and liable for all uses of the Software and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions.
KSi shall provide Licensee with the support services described from time to time on KSi’s website located at www.ksiedge.com for one year following the Effective Date and thereafter, solely if Licensee purchases additional support services.
5 Fees and Payment.
Licensee shall pay KSi the fees (“Fees”) set forth in Exhibit A without offset or deduction. Licensee shall make all payments hereunder in US dollars on or before the due date set forth in Exhibit A. If Licensee fails to make any payment when due, in addition to all other remedies that may be available: (i) KSi may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Licensee shall reimburse KSi for all reasonable costs incurred by KSi in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 60 days following written notice thereof, KSi may prohibit access to the Software until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Licensee or any other person by reason of such prohibition of access to the Software.
All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on KSi’s income.
6 Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is:
a. in the public domain;
b. known to the receiving Party at the time of disclosure;
c. rightfully obtained by the receiving Party on a non-confidential basis from a third party; or
d. independently developed by the receiving Party.
The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7 Intellectual Property Ownership; Feedback.
Licensee acknowledges that, as between Licensee and KSi, KSi owns all right, title, and interest, including all intellectual property rights, in and to the Software and Documentation.
If Licensee or any of its employees or contractors sends or transmits any communications or materials to KSi by mail, email, telephone, or otherwise, suggesting or recommending changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), KSi is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to KSi on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and KSi is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although KSi is not required to use any Feedback.
8 Limited Warranties and Warranty Disclaimer.
a) KSi warrants that: (i) the Software will perform materially as described in the Documentation for a period of one year following the Effective Date; and (ii) at the time of delivery the Software does not contain any virus or other malicious code that would cause the Software to become inoperable or incapable of being used in accordance with the Documentation.
b) The warranties set forth in this Section 8 do not apply and become null and void if Licensee breaches any provision of this Agreement, or if Licensee or any person provided access to the Software by Licensee whether or not in violation of this Agreement: (i) installs or uses the Software on or in connection with any hardware or software not specified in the Documentation; (ii) modifies or damages the Software; or (iii) misuses the Software, including any use of the Software other than as specified in the Documentation.
c) If, during the period specified above in this Section 8, any Software fails to comply with the warranty in Section 8(a), and such failure is not excluded from warranty pursuant to Section 8, KSi shall, subject to Licensee’s promptly notifying KSi in writing of such failure, at its sole option, either: (i) repair or replace the Software, provided that Licensee provides KSi with all information KSi requests to resolve the reported failure, including sufficient information to enable the KSi to recreate such failure; or (ii) refund the Fees paid for such Software, subject to Licensee’s ceasing all use of and, if requested by KSi, returning to KSi all copies of the Software. If KSi repairs or replaces the Software, the warranty will continue to run from the Effective Date and not from Licensee’s receipt of the repair or replacement. The remedies set forth in this Section 8(c) are Licensee’s sole remedies and KSi’s sole liability under the limited warranty set forth in Section 8(a).
d) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND KSI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KSI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), KSI MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.1 KSi Indemnification.
a. During the Term, KSi shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Licensee resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that Licensee promptly notifies KSi in writing of the claim, cooperates with KSi, and allows KSi sole authority to control the defense and settlement of such claim.
b. If such a claim is made or appears possible, Licensee agrees to permit KSi, at KSi’s sole discretion, to (A) modify or replace the Software or Documentation, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If KSi determines that none of these alternatives is reasonably available, KSi may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.
c. This Section 9.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Software in combination with data, software, hardware, equipment, or technology not provided by KSi or authorized by KSi in writing; (B) modifications to the Software not made by KSi; or (C) use of any version other than the most current version of the Software or Documentation delivered to Licensee.
9.2 Licensee Indemnification.
Licensee shall indemnify, hold harmless, and, at KSi’s option, defend KSi from and against any Losses resulting from any Third-Party Claim based on Licensee’s: (i) negligence or willful misconduct; or (ii) use of the Software or Documentation in a manner not authorized or contemplated by this Agreement, provided that Licensee may not settle any Third-Party Claim against KSi unless such settlement completely and forever releases KSi from all liability with respect to such Third-Party Claim or unless KSi consents to such settlement, and further provided that KSi will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9.3 Sole Remedy.
THIS SECTION 9 SETS FORTH LICENSEE’S SOLE REMEDIES AND KSI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10 Limitations of Liability.
IN NO EVENT WILL KSI BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER KSI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL KSI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO KSI UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11 Term and Termination.
The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until one year from such date (the “Term”). The Term will automatically renew for subsequent one-year terms unless a party gives the other party 45 day’s notice.
In addition to any other express termination right set forth in this Agreement:
a. KSi may terminate this Agreement, effective on written notice to Licensee, if Licensee breaches any of its obligations under Section 2.2 or Section 6;
b. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
c. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
11.3 Effect of Expiration or Termination.
Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate, and, without limiting Licensee’s obligations under Section 6, Licensee shall cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to the KSi that the Software and Documentation has been deleted or destroyed. No expiration or termination will affect Licensee’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
This Section 11.4 and Sections 1, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12.1 Entire Agreement.
This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
12.3 Force Majeure.
In no event shall KSi be liable to Licensee, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond KSi’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
12.4 Amendment and Modification; Waiver.
No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
12.6 Governing Law; Submission to Jurisdiction.
This Agreement is governed by and construed in accordance with the internal laws of the State of Kansas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Kansas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States in Topeka, Kansas or the courts of the State of Kansas in Nemaha County, Kansas, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of KSi. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
12.8 Export Regulation.
The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Licensee shall not, directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
12.9 US Government Rights.
Each of the Documentation and the Software is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government licensees and their contractors.
12.10 Equitable Relief.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Licensee, Section 2.2, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
Support Services and Extended Warranty Agreement
This Support Services Agreement and Extended Warranty Agreement (the “Agreement”), effective as of the Start Date set forth in the Edge Subscription Agreement (the “Effective Date”), is by and between KSi Conveyor, Inc., an Illinois corporation with offices located at 2345 U Rd, Sabetha, KS 66534 (“KSi”), and Customer.
This Agreement is entered into as part of the Edge Subscription Agreement, which is incorporated by reference, between KSi and Customer. Customer desires to obtain support services from KSi for the Software, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1.1. “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
1.2. “Deliverables” means the Maintenance Releases, Remote Access Software, Documentation, and any other work product that KSi provides or makes available to Customer in connection with the Services.
1.3. “Documentation” means KSi’s user manuals and user guides relating to the Software and other end user documentation relating to the Software available at www.ksiedge.com that KSi provides or makes available to Customer which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
1.4. “Error” means a reproducible failure of the Software to perform in substantial conformity with the specifications set forth in the Documentation, whose origin can be isolated to a single cause.
1.5. “Incident” means a support request that begins when Customer contacts KSi to report one specific Error and ends when KSi either: (a) Resolves the Error; or (b) determines in its discretion that the Error cannot be Resolved.
1.6. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.7. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement or rule of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
1.8. “Loss” means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance Providers.
1.9. “Maintenance Release” means any update, upgrade, release, or other adaptation or modification of the Software, including any updated Documentation, that KSi may provide to Customer from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software.
1.10. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
1.11. “KSi Personnel” means all Persons involved in the performance of Services as employees, agents, or independent contractors of KSi or any Subcontractor.
1.12. “Remote Services” means the delivery of Services remotely over the internet through the use of Remote Access Software that KSi installs on Customer’s network, system, or computers.
1.13. “Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
1.14. “Resolve” means the provision of: (a) Services that, in KSi’s discretion, correct the Error; (b) information to Customer that corrects the Error; (c) information to Customer on how to obtain a software solution that corrects the Error; (d) notice to Customer that the Error is caused by a known, unresolved issue or an incompatibility issue with the Software; (e) information to Customer that identifies the Error as being corrected by upgrading to a newer release of the Software; or (f) notice to Customer that the Error has been identified as arising out of or resulting from a Service Exception.
1.15. “Respond” means KSi’s initial communication with Customer, whether by telephone, email, or otherwise, acknowledging Customer’s request for Services in connection with a specific Error. “Response” has a correlative meaning.
1.16. “Software” means the executable, object code version of the KSi® AutoTreat™, and any Maintenance Releases provided to Customer pursuant to the Software License Agreement.
1.17. “Software License Agreement” means the agreement entered into by and between KSi and Customer that grants Customer a license to access and use the Software pursuant to the terms and conditions set forth therein.
1.18. “Subcontractor” has the meaning set forth in Section 2.8.
1.19. “Term” has the meaning set forth in Section 9.2.
1.20. “Technical Contact” has the meaning set forth in Section 5.7.
1.21. “Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to KSi, including any third-party: (a) documents, data, content, or specifications; (b) software, hardware, system, network, or other product, facility, equipment, or device; and (c) accessories, components, parts, or features of any of the foregoing.
Subject to the terms and conditions of this Agreement and the Software License Agreement, and conditioned on Customer’s and its Representatives’ compliance therewith, KSi will provide services to Customer as set forth in this Section 2 (the “Services”) during the Term.
14.1 Scope of Services.
During the Term KSi will place Customer’s calls into a prioritized queue, which will be answered before any lower tiered calls.
14.2 Remote Services.
Customer acknowledges and agrees that KSi may provide Remote Services to Customer to assist in analyzing and Resolving any Incident. Customer agrees to provide KSi with access to Customer’s network to install and use remote access software (“Remote Access Software”) necessary for KSi to provide the Remote Services to Customer. The Remote Access Software contains technological measures designed to collect and transmit to KSi certain diagnostic, technical, usage, and related information, including information about Customer’s computers, systems, network, and any Third-Party Materials, relating to or derived from Customer’s use of Software. Customer acknowledges and agrees that: (a) KSi may collect, maintain, process, and use this information in the course of performing the Services under this Agreement; and (b) all or portions of the Remote Access Software may remain on Customer’s system after an Incident is Resolved.
14.3 Maintenance Releases.
During the Term, KSi will provide Customer with all Maintenance Releases under the terms and conditions set forth in the Software License Agreement.
14.4 Service Changes.
KSi may, in its sole discretion, change any aspect of the Services or their performance on 30 days’ prior written notice to Customer, provided that no such change materially reduces or otherwise has a material adverse effect on the: (a) KSi’s level of effort in performing the Services; (b) KSi’s obligation to provide the Services under this Agreement; or (c) Customer’s rights under this Agreement.
KSi may perform any of the Services by or through third parties (each, a “Subcontractor”) or any other KSi Personnel.
14.6 Extended Service on Certain Devices
KSi will cover the cost of parts and labor to repair your KSi provided PLC and PC Hard drive (“Products”) in the event of a mechanical or electrical breakdown during the Term, which is not excluded under Section 4. If KSi determines that KSi cannot service Products as specified in this agreement, we may at our discretion, (a) replace the Product with a replacement product, or (b) refund you the purchase price paid for the Product, including the taxes indicated on the sales receipt. Replacement parts will be new, rebuilt, or non-original manufacturer’s parts that perform to the factory specifications of the product at KSi’s sole option.
KSi has the sole right to determine: (a) what constitutes an Incident; and (b) when an Incident is deemed to be Resolved.
15.2 Response Time and Resolution.
KSi will use commercially reasonable efforts to Resolve an Incident, but does not guarantee that it will be able to Respond within that specific time period or that any Incident will be Resolved.
15.3 On-Site Visits.
KSi will provide on-site support only at Designated Site(s) between 8 a.m. to 5 p.m., Central Time, Monday through Friday, unless otherwise agreed to by KSi in writing. Expedited and after-hours services will incur additional charges.
15.4 Effect of Customer Failure or Delay.
KSi is not responsible or liable for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of Customer’s obligations under the Software License Agreement or this Agreement in accordance with the respective terms and conditions of these agreements (each, a “Customer Failure”).
KSi has no obligation to provide Services relating to Errors or product defects that, in whole or in part, arise out of or result from any of the following (each a “Service Exception”):
1. Software, or the media on which it is provided, that is modified or damaged by Customer or any third party;
2. any operation or use of, or other activity relating to, the Software or Products other than as specified in the Documentation, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system, or network) or service not specified for Customer’s use in the Documentation;
3. any Third-Party Materials;
4. any negligence, abuse, misapplication, or misuse of the Product or Software other than by KSi Personnel, including any Customer use of the Software other than as specified in the Documentation and any unauthorized removal, bypass, or disabling of safety features;
5. any Customer Failure, including Customer’s failure to promptly install any Maintenance Release that KSi has previously made available to Customer or unauthorized repairs;
6. the operation of, or access to, Customer’s or a third party’s system or network;
7. any relocation, installation or integration of the Software other than by KSi Personnel;
8. any beta software, software that KSi makes available for testing or demonstration purposes, temporary software modules, or software for which KSi does not receive a license fee;
9. damage resulting or arising from: wear and tear, accidental damage from handling, including drops, spills, or liquid damage, the introduction of foreign objects into the Product, or third-party acts, including theft and vandalism;
10. any breach of or noncompliance with any provision of this Agreement or the Software License Agreement by Customer or any of its Representatives; or
11. any Force Majeure Event (including abnormal physical or electrical stress).
17 Customer Obligations.
Customer shall promptly notify KSi of any Error and provide KSi with reasonable detail of the nature and circumstances of the Error.
Customer shall comply with all terms and conditions of this Agreement and the Software License Agreement.
Customer shall use the Software solely in accordance with the terms and conditions set forth in the Software License Agreement and the Documentation.
Customer shall set up, maintain, and operate in good repair and in accordance with the Documentation all environmental conditions and components, including all networks, systems, and hardware, in or through which: (a) the Software operates; and/or (b) the Customer accesses or uses any of the Services.
In connection with the performance of the Services, Customer shall provide KSi Personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable KSi to perform its obligations (including the provision of the Services), and exercise its rights, under and in accordance with the terms and conditions of this Agreement, including:
a. reasonable, uninterrupted access, both physical and virtual, to the Software and Customer’s premises, systems, networks, and facilities;
b. a safe working environment;
c. reasonable access to the appropriate Customer personnel, including network, systems, operations, and applications personnel; and
d. all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing.
17.6 Data Back-up.
Customer hereby assumes sole responsibility for any lost or altered data, files, or information.
17.7 Technical Contact.
Customer shall designate and maintain throughout the Term one or more individuals to serve as its primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services (each, a “Technical Contact”). The Technical Contact(s) shall be the sole contact(s) between Customer and KSi in connection with day-to-day matters relating to the provision of Services and be responsible for reporting Incidents, providing day-to-day consents and approvals on behalf of Customer, and communicating with and providing timely and accurate information and feedback to KSi in connection with the Services. Customer shall ensure its Technical Contact(s) has the requisite organizational authority, skill, experience, and other qualifications to perform these duties. Customer shall use commercially reasonable efforts to maintain the same Technical Contact(s) in place throughout the Term and provide at least 10 days’ prior written notice to KSi of any replacement or change in the name or contact information of any Technical Contact.
Customer shall provide KSi with all information reasonably requested by KSi from time to time relating to Customer’s use of the Software, Services, or Deliverables, including information on Customer’s hardware, network, systems, and any related Third-Party Materials.
17.9 Current Release.
Except as otherwise specified in this Agreement, Customer must run only the current release level of the Software that KSi has made available to its customers. Customer shall install all Maintenance Releases 45 days from the date they are made available by KSi.
17.10 Responsibility for Representatives.
Customer shall remain responsible and liable for: (a) the supervision, coordination, and performance of Customer’s Representatives in connection with this Agreement; and (b) all acts and omissions of Customer’s Representatives, each of which shall be ascribed to the Customer to the same extent as if such acts or omissions were by Customer itself. Any noncompliance by any Customer Representative with the provisions of this Agreement will constitute Customer’s breach hereof.
18.1 Confidential Information.
In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) Confidential Information. Subject to Section 6.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that: (a) if disclosed in writing or other tangible form or medium, is marked “confidential” or “proprietary”; or (b) if disclosed orally or in other intangible form or medium, is identified by the Disclosing Party or its Representative as confidential or proprietary when disclosed and summarized and marked “confidential” or “proprietary” in writing by the Disclosing Party or its Representative within 60 days after disclosure; or (c) due to the nature of its subject matter or the circumstances surrounding its disclosure, would reasonably be understood to be confidential or proprietary.
18.2 Exclusions and Exceptions.
Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
18.3 Protection of Confidential Information.
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
a. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
b. except as may be permitted under the terms and conditions of Section 6.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 6; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6;
c. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
d. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
e. ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 6.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
18.4 Compelled Disclosures.
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6.3; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
19 Fees; Payment Terms.
Customer shall pay to KSi fees and other amounts payable pursuant to this Section 7 as set forth in Exhibit A (”Fees”).
19.2 Fee Increases.
KSi may increase Fees for any Renewal Term by providing written notice to Customer at least 60 calendar days prior to the commencement of such Renewal Term, and Exhibit A will be deemed amended accordingly.
19.3 Remedial Fees.
If an Error is falsely reported by or on behalf of Customer, or the cause of any Error or system problem is other than the Software, Customer shall pay KSi’s standard hourly rates then in effect for any onsite support provided to investigate or attempt to Resolve such Error or problem.
19.4 Reimbursable Expenses.
Customer shall reimburse KSi for all out-of-pocket expenses incurred by KSi in connection with performing any on-site Services (”Reimbursable Expenses”).
All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on KSi’s income.
Customer shall pay all Fees on or before the Effective Date. Customer shall pay Reimbursable Expenses within 30 days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars to the address or account specified in Exhibit A or such other address or account as KSi may specify in writing from time to time.
19.7 Late Payment.
If Customer fails to make any payment when due then, in addition to all other remedies that may be available to KSi:
a. KSi may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
b. Customer shall reimburse KSi for all reasonable costs incurred by KSi in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and
c. if such failure continues for 45 days following written notice thereof, KSi may suspend performance of the Services until all past due amounts, including interest, have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
19.8 No Deductions or Setoffs.
All amounts payable to KSi under this Agreement shall be paid by Customer to KSi in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
20 Intellectual Property Rights.
20.1 Intellectual Property Ownership.
Customer acknowledges and agrees that:
a. the Software and Deliverables are licensed, not sold, to Customer by KSi and Customer does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Software or Deliverables, or in any related Intellectual Property Rights;
b. KSi is and will remain the sole and exclusive owner of all right, title, and interest in and to the Software and Deliverables, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to Customer under this Agreement; and
c. Customer hereby unconditionally and irrevocably assigns to KSi, its entire right, title, and interest in and to any Intellectual Property Rights that Customer may now or hereafter have in or relating to the Software or Deliverables (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment, or otherwise.
20.2 Customer Cooperation and Notice of Infringement.
Customer shall, during the Term:
a. safeguard the Software and Deliverables (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;
b. at KSi’s expense, take all such steps as KSi may reasonably require to assist KSi in maintaining the validity, enforceability, and KSi’s ownership of the Intellectual Property Rights in the Software and Deliverables;
c. promptly notify KSi in writing if Customer becomes aware of any claim that the Software or Deliverables, including any production, use, marketing, sale, or other disposition of the Software or Deliverables, in whole or in part, infringes, misappropriates, or otherwise violates the Intellectual Property Rights or other rights of any Person
20.3 No Implied Rights.
Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software or Deliverables.
21 Term and Termination.
21.1 Initial Term.
The initial term of this Agreement commences as of the Effective Date and will continue in effect until August 31 following the Effective Date unless terminated earlier pursuant any of the Agreement’s express provisions (the “Initial Term”).
21.2 Renewal Term.
This Agreement will automatically renew for additional successive one year terms unless earlier terminated pursuant to any of the Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
This Agreement may be terminated at any time:
a. by KSi, effective on written notice to Customer, if Customer fails to pay any amount when due under this Agreement or the Software License Agreement, where such failure continues more than 30 days after KSi’s delivery of written notice thereof (“Payment Failure”);
b. by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement or the Software License Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
c. automatically, effective immediately, on the expiration or earlier termination of the Software License Agreement; or
d. by KSi, effective immediately, if the Customer: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
21.4 Effect of Termination or Expiration.
On the expiration or earlier termination of this Agreement:
a. all rights, licenses, and authorizations granted to Customer hereunder will immediately terminate and Customer shall immediately cease all use of and other activities with respect to the KSi’s Confidential Information relating to the Services; and
b. all amounts payable by Customer to KSi of any kind are immediately payable and due no later than 45 days after the effective date of the expiration.
21.5 Surviving Terms.
The provisions set forth in the following sections, and any other right, obligation, or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 9.5, Section 1 (Definitions), Section 2.9 (Open Source Components), Section 6 (Confidentiality), Section 8 (Intellectual Property Rights), Section 9.4 (Effect of Termination or Expiration), Section 10.1 (Mutual Representations and Warranties), Section 10.3 (Disclaimer), Section 11 (Indemnification), Section 12 (Limitations of Liability), Section 13 (Export Regulation), and Section 15 (Miscellaneous).
22 Representations and Warranties.
22.1 Mutual Representations and Warranties.
Each Party represents, warrants, and covenants to the other Party that:
a. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
b. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement;
c. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
d. when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
22.2 Additional KSi Representations and Warranties.
KSi represents, warrants, and covenants to Customer that during the Term KSi will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
22.3 DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE LICENSED SOFTWARE, THE SERVICES, AND THE DELIVERABLES ARE PROVIDED “AS IS.” KSI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, KSI MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE, THE SERVICES, THE DELIVERABLES, OR ANY OTHER GOODS, SERVICES, TECHNOLOGIES, INFORMATION, OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S OR OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, INFORMATION, OR MATERIALS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS. THIS AGREEMENT DOES NOT AMEND, AUGMENT, OR OTHERWISE MODIFY THE KSI’S WARRANTIES UNDER THE SOFTWARE LICENSE AGREEMENT OR ANY CONDITIONS, LIMITATIONS, OR RESTRICTIONS THEREOF.
23.1 KSi Indemnification.
KSi shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer arising out of any Action by a third party (other than an Affiliate of a Customer) to the extent that such Losses arise from any allegation in such Action that any of the Services or Deliverables infringes any U.S. Intellectual Property Right. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any: (a) Third-Party Materials; (b) patent issued on a patent application published after the Effective Date; (c) negligence, abuse, misapplication, or misuse of the Software or any Deliverables other than by KSi Personnel; (d) events or circumstances outside of KSi’s commercially reasonable control (including any bugs, defects, or malfunctions of any third-party software, hardware, firmware, system, or network); or (e) act, omission, or other fact referred to in Section 11.2, irrespective of whether Customer is obligated to indemnify KSi as a result thereof.
23.2 Customer Indemnification.
Customer shall indemnify, defend, and hold harmless KSi and its Affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors, and assigns (each, including KSi, a “KSi Indemnitee”) from and against any and all Losses incurred by the KSi Indemnitee in connection with any Action by a third party (other than an Affiliate of a KSi Indemnitee) to the extent that such Losses arise from any allegation in such Action that any Intellectual Property Right or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any (a) failure by Customer to timely implement any Maintenance Release, modification, update, or replacement of the Software or any Deliverables made available to Customer by or on behalf of KSi; (b) a breach by Customer of any representation, warranty, covenant, or obligation under the License Agreement or this Agreement; (c) KSi use of Customer’s Remote Access Software if Customer requires KSi use Customer’s Remote Access Software; or (d) act relating to the Software, the Services, or the Deliverables by or on behalf of Customer that is: (1) outside the scope of Customer’s license under the Software License Agreement or the purpose, scope, or manner of use authorized by the Software License Agreement, this Agreement or the Documentation; or (2) in any manner contrary to KSi’s instructions.
23.3 Indemnification Procedure.
Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
If the Services or Deliverables, or any part of thereof, are, or in KSi’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any of the Services or Deliverables is enjoined or threatened to be enjoined, KSi may, at its option and sole cost and expense:
a. obtain the right for Customer to continue to use such Services and/or Deliverables, as applicable, as contemplated by this Agreement;
b. modify or replace such Services and/or Deliverables, as applicable, in whole or in part, to seek to make these non-infringing, while providing equivalent features and functionality, and such Services and Deliverables as so modified or replaced will constitute Services and Deliverables under this Agreement; or
c. by written notice to Customer, terminate this Agreement and require Customer to immediately cease any use of the Services and/or Deliverables, provided that Customer will be entitled to a prorated refund.
THIS SECTION 11 SETS FORTH CUSTOMER’S SOLE REMEDIES AND KSI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND DELIVERABLES) INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
24 Limitations of Liability.
24.1 Exclusion of Damages.
IN NO EVENT WILL KSI, KSI PERSONNEL, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF USE, DATA, BUSINESS, REVENUE, PROFIT, GOODWILL, OR REPUTATION, (b) BUSINESS INTERRUPTION, INCREASED COSTS, OR DIMINUTION IN VALUE, OR (c) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
24.2 CAP ON MONETARY LIABILITY.
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF KSI AND ITS KSI PERSONNEL, SUBCONTRACTORS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO KSI FOR THIS SUBSCRIPTION AND SOFTWARE LICENSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE CUSTOMER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
The exclusions in Section 12.1 do not apply to KSi’s obligations under Section 11 (Indemnification) or liability for KSi’s gross negligence or willful misconduct.
25 Export Regulation.
The Software may be subject to US export control laws, including the Export Control Reform Act and its associated regulations. Customer will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction, or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
26 Force Majeure.
26.1 No Breach or Default.
In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or regional shortage of adequate power, telecommunications, or transportation. Either Party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of 60 days or more.
26.2 Affected Party Obligations.
In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
27.1 Further Assurances.
On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
27.2 Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
Notices will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
27.6 Entire Agreement.
This Agreement, together with the Software License Agreement and any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices and the Software License Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date as defined herein; and (c) third, any other documents incorporated herein by reference.
Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without KSi’s prior written consent. No delegation or other transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.7 is void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
27.8 No Third-Party Beneficiaries.
This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
27.9 Amendment and Modification; Waiver.
No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
27.11 Governing Law; Submission to Jurisdiction.
This Agreement is governed by and construed in accordance with the internal laws of the State of Kansas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Kansas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services, Deliverables, or other subject matter hereof, or any transactions contemplated hereby, shall be instituted in the federal courts of the United States located in the city of Topeka and County of Shawnee or in the courts of the State of Kansas located in Nemaha County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
27.12 Equitable Remedies.
Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 (Confidentiality) or, in the case of Customer, Section 5 (Customer Obligations) or Section 8 (Intellectual Property Rights), of this Agreement would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
27.13 Attorneys’ Fees.
In the event that any suit, action, or other proceeding is instituted or commenced by either Party against the other Party arising out of this Agreement, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Last modified: 23 June 2020
KSi Conveyor, Inc. ("Company" or "We") respect your privacy and are committed to protecting it through our compliance with this policy. This policy describes:
· The types of information we may collect or that you may provide when you purchase, install, access, or use the Technology.
· Our practices for collecting, using, maintaining, protecting, and disclosing that information.
· The types of information we may collect from you or that you may provide when you visit the website ksiconveyors.com and ksiedge.com (our "Website") and our practices for collecting, using, maintaining, protecting, and disclosing that information.
This policy applies to information we collect through our Website, in KSi software, and any electronic communications sent through or in connection with KSi services (collectively, “Technology”).
This policy DOES NOT apply to information that:
· We collect offline or on any other Company apps or websites, including websites you may access through this Technology.
· You provide to or is collected by any third party (see Third-Party Information Collection).
· Any third party (including our affiliates and subsidiaries), including through any application or content (including advertising) that may link to or be accessible from the Website
Individual websites, software, and apps, and these other third parties may have their own privacy policies, which we encourage you to read before providing information on or through them.
The Technology is not intended for children under 16 years of age, and we do not knowingly collect personal information from children under 16. If we learn we have collected or received personal information from a child under 16 without verification of parental consent, we will delete that information. If you believe we might have any information from or about a child under 16, please contact us at firstname.lastname@example.org.
California residents under 16 years of age may have additional rights regarding the collection and sale of their personal information. Please see [Your California Privacy Rights] for more information.
Information We Collect and How We Collect It
We collect information from and about users of our Technology:
· Directly from you when you provide it to us.
· Indirectly from you when you connect third party software, apps, and components to the Technology.
· Automatically when you use the Technology and as you navigate the site. Information collected automatically may include usage details, IP addresses, and information collected through cookies, web beacons, and other tracking technologies.
· From third parties, for example, our business partners.
Information You Provide to Us
The information we collect on or through our Website or through registering or using the Technology may include:
· By which you may be personally identified, such as name, postal address, email address, telephone number, and any other identifier by which you may be contacted online or offline ("personal information").
· Information that you provide by filling in forms on our Website. This includes information provided at the time of registering to use our Website, subscribing to our service, posting material, or requesting further services. We may also ask you for information when you report a problem with the Technology.
· Records and copies of communications.
· That is about you but individually does not identify you, such as business names, training history, certifications, affiliations and authorizations for third parties.
This information includes:
· Information that you provide by filling in forms in the Technology. This includes information provided at the time of registering to use the Technology, subscribing to our service, transmitting material, and requesting further services. We may also ask you for information when you report a problem with the Technology or request further Services.
· Records and copies of your correspondence (including email addresses and phone numbers), if you contact us.
· Your responses to surveys that we might ask you to complete for research purposes.
· Details of transactions you carry out through the Technology and of the fulfillment of your orders. You may be required to provide financial information before placing an order through the Technology.
· Your search queries on the Technology.
You may also provide information for publication or display ("Posted") on public areas of the Technology (collectively, "User Contributions"). Your User Contributions are Posted and transmitted to others at your own risk. Although you may set certain privacy settings for such information by logging into your account profile, please be aware that no security measures are perfect or impenetrable. Additionally, we cannot control the actions of third parties with whom you may choose to share your User Contributions. Therefore, we cannot and do not guarantee that your User Contributions will not be viewed by unauthorized persons.
Automatic Information Collection and Tracking
When you download, access, and use the Technology or visit the website, it may use technology to automatically collect:
· Usage Details. When you access and use the Technology, we may automatically collect certain details of your access to and use of the Technology, including traffic data, location data, logs, and other communication data and the resources that you access and use on or through the Technology.
· Device Information. We may collect information about your mobile device and internet connection, including the device’s unique device identifier, IP address, operating system, browser type, mobile network information, and the device’s telephone number.
· Stored Information and Files. The Technology also may access metadata and other information associated with other files stored on your device. This may include, for example, photographs, audio and video clips, personal contacts, and address book information.
· Location Information. This Technology does not collect real-time information about the location of your device, except for IP based location information.
· Details of your Visit. Details of your visits to our Website, including traffic data, location data, logs, and other communication data and the resources that you access and use on the Website.
If you do not want us to collect this information do not use the Technology or delete it from your device. Note, however, that opting out of the Technology’s collection of location information will disable any location-based features.
Information Collection and Tracking Technologies
The information we collect automatically may include personal information, or we may maintain it or associate it with personal information we collect in other ways or receive from third parties. It helps us to improve our Website and to deliver a better and more personalized service, including by enabling us to:
· Estimate our audience size and usage patterns.
· Store information about your preferences, allowing us to customize our Website according to your individual interests.
· Speed up your searches.
· Recognize you when you return to our Website.
The technologies we use for this automatic data collection may include:
· Flash Cookies. Certain features of our Website may use local stored objects (or Flash cookies) to collect and store information about your preferences and navigation to, from, and on our Website. Flash cookies are not managed by the same browser settings as are used for browser cookies. For information about managing your privacy and security settings for Flash cookies, see Choices About How We Use and Disclose Your Information.
· Web Beacons. Pages of our the Website and our e-mails may contain small electronic files known as web beacons (also referred to as clear gifs, pixel tags, and single-pixel gifs) that permit the Company, for example, to count users who have visited those pages or opened an email and for other related website statistics (for example, recording the popularity of certain website content and verifying system and server integrity).
Third-Party Information Collection
When you use the Technology or its content, certain third parties may use automatic information collection technologies to collect information about you or your device. These third parties may include:
· Analytics companies.
· Your mobile device manufacturer.
· Your internet service provider.
· Your mobile service provider.
These third parties may use tracking technologies to collect information about you when you use this Technology. The information they collect may be associated with your personal information or they may collect information, including personal information, about your online activities over time and across different websites, Technologys, and other online services websites. They may use this information to provide you with interest-based (behavioral) advertising or other targeted content.
We do not control these third parties’ tracking technologies or how they may be used. If you have any questions about an advertisement or other targeted content, you should contact the responsible provider directly.
We use information that we collect about you or that you provide to us, including any personal information, to:
· To present the Website and its contents to you.
· Provide you with the Technology and its contents, and any other information, products or services that you request from us.
· Fulfill any other purpose for which you provide it.
· Give you notices about your subscription, including expiration and renewal notices.
· Carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collection.
· Notify you when Technology updates are available, and of changes to any products or services we offer or provide though it.
The usage information we collect helps us to improve our Technology and to deliver a better and more personalized experience by enabling us to:
· Estimate our audience size and usage patterns.
· Store information about your preferences, allowing us to customize our Technology according to your individual interests.
We may use location information we collect to coordinate data on equipment and product usage for production estimates and to improve the services based on usage in light of location-specific weather.
Disclosure of Your Information
We may disclose aggregated information about our users, and information that does not identify any individual, without restriction.
In addition, we may disclose personal information that we collect or you provide:
· To our subsidiaries and affiliates.
· To contractors, service providers, and other third parties we use to support our business.
· To a buyer or other successor in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of KSi Conveyor’s assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by KSi Conveyor, Inc. about our Technology users is among the assets transferred.
· To fulfill the purpose for which you provide it. For example, if you authorize data be shared with a third party, we will transmit the data to the recipients.
· For any other purpose disclosed by us when you provide the information.
· With your consent.
· To comply with any court order, law, or legal process, including to respond to any government or regulatory request.
· To enforce our rights arising from any contracts entered into between you and us, including a Software License Agreement, terms of sale, and for billing and collection.
· If we believe disclosure is necessary or appropriate to protect the rights, property, or safety of KSi Conveyor, Inc., our customers or others. This includes exchanging information with other companies and organizations for the purposes of fraud protection and credit risk reduction.
Your Choices About Our Collection, Use, and Disclosure of Your Information
We strive to provide you with choices regarding the personal information you provide to us. This section describes mechanisms we provide for you to control certain uses and disclosures of over your information.
We do not control third parties’ collection or use of your information to serve interest-based advertising. However these third parties may provide you with ways to choose not to have your information collected or used in this way. You can opt out of receiving targeted ads from members of the Network Advertising Initiative ("NAI") on the NAI’s website.
California residents may have additional personal information rights and choices. Please see [Your California Privacy Rights] for more information.
Accessing and Correcting Your Personal Information
You may be able to review and change certain personal information by logging into the Technology and visiting your account profile page.
You may also send us an email at email@example.com to request access to, correct, or delete any personal information that you have provided to us. We cannot delete your personal information except by also deleting your user account. We may not accommodate a request to change information if we believe the change would violate any law or legal requirement or cause the information to be incorrect.
California residents may have additional personal information rights and choices. Please see [Your California Privacy Rights] for more information.
Your California Privacy Rights
If you are a California resident, California law may provide you with additional rights regarding our use of your personal information. To learn more about your California privacy rights, visit http://www.ksiedge.com/terms.
We have implemented measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration, and disclosure.
The safety and security of your information also depends on you. Where we have given you (or where you have chosen) a password for access to certain parts of our Technology, you are responsible for keeping this password confidential. We ask you not to share your password with anyone.
Unfortunately, the transmission of information via the internet and mobile platforms is not completely secure. Although we do our best to protect your personal information, we cannot guarantee the security of your personal information transmitted through our Technology. Any transmission of personal information is at your own risk. We are not responsible for circumvention of any privacy settings or security measures we provide.
KSi Conveyor, Inc. Privacy Notice for California Residents
Effective Date: 4/24/2020
Where noted in this Notice, the CCPA temporarily exempts personal information reflecting a written or verbal business-to-business communication ("B2B personal information") from some its requirements.
We collect information that identifies, relates to, describes, references, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer, household, or device ("personal information"). Personal information does not include:
· Publicly available information from government records.
· Deidentified or aggregated consumer information.
· Information excluded from the CCPA’s scope, such as personal information covered by certain sector-specific privacy laws, including the Fair Credit Reporting Act (FCRA), the Gramm-Leach-Bliley Act (GLBA) or California Financial Information Privacy Act (FIPA), and the Driver’s Privacy Protection Act of 1994.
In particular, we have collected the following categories of personal information from its consumers within the last twelve (12) months:
A real name, alias, postal address, unique personal identifier, online identifier, Internet Protocol address, email address, account name, Social Security number, driver’s license number, passport number, or other similar identifiers.
B. Personal information categories listed in the California Customer Records statute (Cal. Civ. Code § 1798.80(e)).
A name, signature, Social Security number, physical characteristics or description, address, telephone number, passport number, driver’s license or state identification card number, insurance policy number, education, employment, employment history, bank account number, credit card number, debit card number, or any other financial information, medical information, or health insurance information.
Some personal information included in this category may overlap with other categories.
C. Protected classification characteristics under California or federal law.
Age (40 years or older), race, color, ancestry, national origin, citizenship, religion or creed, marital status, medical condition, physical or mental disability, sex (including gender, gender identity, gender expression, pregnancy or childbirth and related medical conditions), sexual orientation, veteran or military status, genetic information (including familial genetic information).
D. Commercial information.
Records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies.
E. Biometric information.
Genetic, physiological, behavioral, and biological characteristics, or activity patterns used to extract a template or other identifier or identifying information, such as, fingerprints, faceprints, and voiceprints, iris or retina scans, keystroke, gait, or other physical patterns, and sleep, health, or exercise data.
F. Internet or other similar network activity.
Browsing history, search history, information on a consumer’s interaction with a website, application, or advertisement.
G. Geolocation data.
Physical location or movements.
H. Sensory data.
Audio, electronic, visual, thermal, olfactory, or similar information.
I. Professional or employment-related information.
Current or past job history or performance evaluations.
J. Non-public education information (per the Family Educational Rights and Privacy Act (20 U.S.C. Section 1232g, 34 C.F.R. Part 99)).
Education records directly related to a student maintained by an educational institution or party acting on its behalf, such as grades, transcripts, class lists, student schedules, student identification codes, student financial information, or student disciplinary records.
K. Inferences drawn from other personal information.
Profile reflecting a person’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.
We obtain the categories of personal information listed above from the following categories of sources:
· Directly from you. For example, from forms you complete or products and services you purchase and when you call for technical support or services.
· Indirectly from you. For example, from observing your actions on our Website and when you use our Products and Services.
We may use, or disclose the personal information we collect for one or more of the following purposes:
· To fulfill or meet the reason you provided the information. For example, if you share your name and contact information to request a price quote or ask a question about our products or services, we will use that personal information to respond to your inquiry. If you provide your personal information to purchase a product or service, we will use that information to process your payment and facilitate delivery. We may also save your information to facilitate new product orders or process returns.
· To provide, support, personalize, and develop our Website, products, and services.
· To create, maintain, customize, and secure your account with us.
· To process your requests, purchases, transactions, and payments and prevent transactional fraud.
· To provide you with support and to respond to your inquiries, including to investigate and address your concerns and monitor and improve our responses.
· To personalize your Website experience and to deliver content and product and service offerings relevant to your interests, including targeted offers and ads through our Website, third-party sites, and via email or text message (with your consent, where required by law).
· To help maintain the safety, security, and integrity of our Website, products and services, databases and other technology assets, and business.
· For testing, research, analysis, and product development, including to develop and improve our Website, products, and services.
· To respond to law enforcement requests and as required by applicable law, court order, or governmental regulations.
· As described to you when collecting your personal information or as otherwise set forth in the CCPA.
· To evaluate or conduct a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of our assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by us about our consumers is among the assets transferred.
We will not collect additional categories of personal information or use the personal information we collected for materially different, unrelated, or incompatible purposes without providing you notice.
We may disclose your personal information to a third party for a business purpose. When we disclose personal information for a business purpose, we enter a contract that describes the purpose and requires the recipient to both keep that personal information confidential and not use it for any purpose except performing the contract.
We share your personal information with the following categories of third parties:
· Service providers.
· Data aggregators.
Disclosures of Personal Information for a Business Purpose
In the preceding twelve (12) months, Company has disclosed the following categories of personal information for a business purpose:
Category A: Identifiers.
Category B: California Customer Records personal information categories.
Category D: Commercial information.
Category F: Internet or other similar network activity.
Category G: Geolocation data.
Category H: Sensory data.
We disclose your personal information for a business purpose to the following categories of third parties:
· Service providers.
· Data Aggregators.
In the preceding twelve (12) months, Company had not sold personal information.
Your Rights and Choices
The CCPA provides consumers (California residents) with specific rights regarding their personal information. This section describes your CCPA rights and explains how to exercise those rights.
Access to Specific Information and Data Portability Rights
You have the right to request that we disclose certain information to you about our collection and use of your personal information over the past 12 months. Once we receive and confirm your verifiable consumer request (see Exercising Access, Data Portability, and Deletion Rights), we will disclose to you:
· The categories of personal information we collected about you.
· The categories of sources for the personal information we collected about you.
· Our business or commercial purpose for collecting or selling that personal information.
· The categories of third parties with whom we share that personal information.
· The specific pieces of personal information we collected about you (also called a data portability request).
· If we sold or disclosed your personal information for a business purpose, two separate lists disclosing:
· sales, identifying the personal information categories that each category of recipient purchased; and
· disclosures for a business purpose, identifying the personal information categories that each category of recipient obtained.
You have the right to request that we delete any of your personal information that we collected from you and retained, subject to certain exceptions. Once we receive and confirm your verifiable consumer request (see Exercising Access, Data Portability, and Deletion Rights), we will delete (and direct our service providers to delete) your personal information from our records, unless an exception applies.
We may deny your deletion request if retaining the information is necessary for us or our service provider(s) to:
1. Complete the transaction for which we collected the personal information, provide a good or service that you requested, take actions reasonably anticipated within the context of our ongoing business relationship with you, fulfill the terms of a written warranty or product recall conducted in accordance with federal law, or otherwise perform our contract with you.
2. Detect security incidents, protect against malicious, deceptive, fraudulent, or illegal activity, or prosecute those responsible for such activities.
3. Debug products to identify and repair errors that impair existing intended functionality.
4. Exercise free speech, ensure the right of another consumer to exercise their free speech rights, or exercise another right provided for by law.
5. Comply with the California Electronic Communications Privacy Act (Cal. Penal Code § 1546 et. seq.).
6. Engage in public or peer-reviewed scientific, historical, or statistical research in the public interest that adheres to all other applicable ethics and privacy laws, when the information’s deletion may likely render impossible or seriously impair the research’s achievement, if you previously provided informed consent.
7. Enable solely internal uses that are reasonably aligned with consumer expectations based on your relationship with us.
8. Comply with a legal obligation.
9. Make other internal and lawful uses of that information that are compatible with the context in which you provided it.
Exercising Access, Data Portability, and Deletion Rights
To exercise the access, data portability, and deletion rights described above, please submit a verifiable consumer request to us by either:
· Calling us at 888.574.3277
· Emailing us at firstname.lastname@example.org
· Visiting www.ksiedge.com
Only you, or someone legally authorized to act on your behalf, may make a verifiable consumer request related to your personal information. You may also make a verifiable consumer request on behalf of your minor child.
You may only make a verifiable consumer request for access or data portability twice within a 12-month period. The verifiable consumer request must:
· Provide sufficient information that allows us to reasonably verify you are the person about whom we collected personal information or an authorized representative, which may include confirming details of personal identification information.
· Describe your request with sufficient detail that allows us to properly understand, evaluate, and respond to it.
We cannot respond to your request or provide you with personal information if we cannot verify your identity or authority to make the request and confirm the personal information relates to you.
Making a verifiable consumer request does not require you to create an account with us.
We will only use personal information provided in a verifiable consumer request to verify the requestor’s identity or authority to make the request.
For instructions on exercising sale opt-out rights, see Personal Information Sales Opt-Out and Opt-In Rights.
We endeavor to respond to a verifiable consumer request within forty-five (45) days of its receipt. If we require more time (up to 90 days), we will inform you of the reason and extension period in writing.
If you have an account with us, we will deliver our written response to that account. If you do not have an account with us, we will deliver our written response by mail or electronically, at your option.
Any disclosures we provide will only cover the 12-month period preceding the verifiable consumer request’s receipt. The response we provide will also explain the reasons we cannot comply with a request, if applicable. For data portability requests, we will select a format to provide your personal information that is readily useable and should allow you to transmit the information from one entity to another entity without hindrance.
We do not charge a fee to process or respond to your verifiable consumer request unless it is excessive, repetitive, or manifestly unfounded. If we determine that the request warrants a fee, we will tell you why we made that decision and provide you with a cost estimate before completing your request.
Personal Information Sales Opt-Out and Opt-In Rights
If you are 16 years of age or older, you have the right to direct us to not sell your personal information at any time (the "right to opt-out"). We do not sell the personal information of consumers we actually know are less than 16 years of age. Consumers who opt-in to personal information sales may opt-out of future sales at any time.
To exercise the right to opt-out, you (or your authorized representative) may submit a request to us by emailing email@example.com. Once you make an opt-out request, we will wait at least twelve (12) months before asking you to reauthorize personal information sales. We will only use personal information provided in an opt-out request to review and comply with the request.
We will not discriminate against you for exercising any of your CCPA rights. Unless permitted by the CCPA, we will not:
· Deny you goods or services.
· Charge you different prices or rates for goods or services, including through granting discounts or other benefits, or imposing penalties.
· Provide you a different level or quality of goods or services.
· Suggest that you may receive a different price or rate for goods or services or a different level or quality of goods or services.
However, we may offer you certain financial incentives permitted by the CCPA that can result in different prices, rates, or quality levels. Any CCPA-permitted financial incentive we offer will reasonably relate to your personal information’s value and contain written terms that describe the program’s material aspects. Participation in a financial incentive program requires your prior opt in consent, which you may revoke at any time.
We reserve the right to amend this privacy notice at our discretion and at any time. When we make changes to this privacy notice, we will post the updated notice on the Website and update the notice’s effective date. Your continued use of our Website or Software or Services following the posting of changes constitutes your acceptance of such changes.
If you have any questions or comments about this notice, the ways in which KSi collects and uses your information described here, your choices and rights regarding such use, or wish to exercise your rights under California law, please do not hesitate to contact us at:
KSi Conveyor, Inc.
Attn: Privacy Concerns
2345 U Rd
Sabetha, KS 66534