KEYMARK GENERAL TERMS SCHEDULE
Version 1- Effective 12/1/2025
These General Terms apply to any product license or service you purchase from KeyMark, LLC (KM), and form part These General Terms apply to any product license or service you purchase from KeyMark, LLC (KM), and form part of the Master Agreement, Order Form, or any other agreement that refers to them (“Incorporating Document”). In these General Terms, “Agreement” means the Incorporating Document, including the General Terms and any other documents or terms incorporated or referenced in the Incorporating Document. If there is a conflict between these General Terms and another document referenced in the Incorporating Document, the other document takes precedence. Capitalized terms may be defined in these General Terms or in any document referenced in the Incorporating Document.
1. TERM AND TERMINATION; SURVIVAL OF CERTAIN PROVISIONS.
1.1 Term. The Agreement shall remain in effect from the Effective Date until the expiration or termination of all Order Forms. Unless stated otherwise in an Order Form: (a) each Order Form will last for the Initial Term and automatically renew for the same length unless either party gives written notice of non-renewal at least 60 days before the current term ends; and (b) Order Forms for add-on products or services will follow the same subscription term as the main Order Form, unless specified otherwise.
1.2 Termination. Either party may terminate the Agreement or an Order Form upon thirty (30) days written notice if: (a) the other party breaches a material term and does not cure the breach within thirty (30) days of receiving written notice from the non-breaching party; (b) terminates or suspends its business without a successor or becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (c) if in the reasonable opinion of the terminating party, compliance with the terms of the Agreement will violate any law or regulation enacted or modified after the Effective Date of the Agreement or an Order Form.
1.3 Effect of Termination. Upon termination, any license to use Software, KSS, Work Products and Documentation automatically ends and Customer must immediately stop using any technology licensed under the Agreement, and either return Software and Documentation and Work Products within Customer’s control or, with KM’s permission, destroy the foregoing and certify such destruction to KM in writing. Except for termination resulting from KM’s breach, Customer is liable for payment to KM for all outstanding and accrued fees through the termination date. Termination does not release either party from any liabilities or obligations which (a) the parties have expressly agreed will survive any such expiration or termination or (b) remain to be performed or by their nature would be intended to be applicable following any such expiration or termination.
1.4 Survival. All provisions of the Agreement which by their nature extend beyond the expiration or termination of the Agreement will survive and remain in effect until all obligations are satisfied. This includes all General Terms provisions other than Marketing and Publicity.
2. ORDERS; FEES AND PAYMENT
2.1 Invoices. KM shall issue payment invoices electronically in USD to the attention of “Accounts Payable,” unless another person or department is specified by Customer or different currency is agreed upon in an Order Form. KM may issue a new invoice to correct billing errors that it discovers. Unless otherwise provided in the Agreement, Customer shall pay all fees in full within thirty (30) days after receipt of such invoice.
2.2 Effect of Late Payment. All late payments by Customer shall bear interest at a rate of one and one-half percent (1.5%) per month or partial month during which any sums were owed and unpaid, or the highest rate allowed by law, whichever is lower.
2.3 Collection Costs. Customer shall reimburse KM for any expenses and costs it incurs to collect any amounts due to KM under the Agreement, including reasonable attorneys’ fees.
2.4 Additional Charges and Taxes. Taxes (other than those on KM’s income), governmental charges such as duties, and shipping charges are not included in payment under or related to this Agreement unless otherwise provided on an Order Form. When applicable, Customer will provide KM with valid tax exemption certificates in advance of any remittance otherwise required to be made by KM on behalf of or for the account of Customer. When Customer is required to withhold taxes by law, Customer agrees to furnish all required receipts and documentation substantiating such payment to KM. When KM is required by law to remit any tax or governmental charge on behalf of Customer or Customer’s account, Customer will reimburse KM within thirty (30) days after KM notifies Customer in writing of such remittance.
2.5 Invoice Disputes. If an invoiced party disputes an invoice in good faith, it shall notify KM in writing within thirty (30) days of receipt, specifying the basis for the dispute and providing supporting documentation. The undisputed portion shall be paid by the due date. If unresolved within thirty (30) days after KM receives written notice, the matter shall be escalated to senior management of the parties within ten (10) days to attempt resolution. If after such senior management meeting the dispute remains unresolved, then either party may commence litigation in a court of competent jurisdiction.
2.6 Reports; Audit Rights. Customer shall submit to KM all reports reasonably requested by KM necessary for KM to determine amounts due and owing to KM and to confirm Customer’s compliance with the terms of the Agreement. Customer shall maintain complete and accurate written records describing: (a) any and all transactions, including the transactions specified in an Order Form; (b) all amounts due and payable hereunder; and (c) any other information which may be reasonably required by KM to determine whether Customer is complying with the terms of the Agreement. To ensure compliance with the terms of the Agreement, KM shall have the right to conduct an inspection and audit of the facilities of Customer and all the relevant books and records of Customer, and to obtain true and correct photocopies thereof, during regular business hours at Customer’s offices and in such a manner as not to interfere unreasonably with Customer’s normal business activities. If any such audit should disclose any underpayment of fees, Customer shall promptly pay KM such underpaid amount, together with interest thereon at a rate of one and one-half percent (1.5%) per month or partial month during which each such amount was owed and unpaid, or the highest rate allowed by law, whichever is lower. If the amount of such underpayment exceeds five percent (5%) of amounts otherwise paid, then Customer shall immediately reimburse KM for KMs reasonable expenses associated with such audit.
2.7 Delivery of Tangible Items. Delivery of tangible items, if any, shall be F.O.B. KM’s (or its affiliate’s) offices.
3. OWNERSHIP; PROHIBITED CONDUCT; SUSPENSION; INFRINGEMENT INDEMNIFICATION
3.1 Ownership. KM owns all right, title and interest, including Intellectual Property Rights, in Software, KSS, Documentation, KM Confidential Information, Tools, Work Products, innovations and in each case all amendments, changes, enhancements, derivates and copies thereto are and shall remain owned by and/or shall be vested solely in KM and its Affiliates and licensors, as applicable. The Software, KSS and Work Products are licensed and not sold. Except as expressly provided in writing, this Agreement shall not give Customer or any third party any direct, indirect or implied right or license to use or otherwise exploit Intellectual Property Rights belonging to KM or its licensors, as applicable. THIS AGREEMENT IS NOT A WORK-FOR-HIRE AGREEMENT. KM or its suppliers retain on an exclusive basis for itself or themselves all right, title and interest in and to any intellectual property developed, discovered, conceived or introduced by KM in the performance of its duties under this Agreement including, but not limited to, all patents, patent applications, copyrights and other intellectual property rights relating to or associated with the Software, KSS, and Work Products.
3.2 Prohibited Conduct. Customer shall not: (1) remove any KM notices in the Software, KSS, Work Products or Documentation or otherwise represent that Reseller is the owner or developer of any of the foregoing; (2) rent, lease, time share or sub-license the Software, KSS, Work Products or Documentation to any third party, (3) use the Software, KSS, Work Products or Documentation in connection with any activities as a service bureau, application service provider, software-as-a-service provider, cloud service provider or other similar arrangement; (4) reverse engineer, disassemble, decompile or attempt to derive source code from the Software, KSS, Work Products, or Documentation or engage in any of the adversarial attacks set forth in the NIST AI 100-2 E2025 publication available at Adversarial Machine Learning: A Taxonomy and Terminology of Attacks and Mitigations; (5) alter or prepare derivative works of the Software, KSS, Work Products or Documentation; and (6) shall not copy, display, distribute or make any other use of the Software, KSS, Work Products or Documentation not expressly covered by the license grants provided in this Agreement.
3.3 Performance Suspension. KM has the right to suspend its performance under the Agreement if Customer (a) commits a Prohibited Act, or (b) fails to timely pay invoices, except for invoices disputed in accordance with Section 2.5. Unless prohibited by applicable law or regulation, KM will use reasonable efforts to (i) notify Customer prior to any suspension of performance, and (ii) resume performance once the Prohibited Act(s) or payment issue(s) are resolved. Customer is responsible for all fees incurred during and after the suspension.
3.4 Infringement Indemnification. KM agrees to defend, indemnify and hold harmless Customer against all liability and expense, including reasonable attorneys’ fees, arising from or in connection with any third party claim, action or proceeding instituted against Customer based upon any infringement or misappropriation by the Software, Work Products, and KSS of any patent, registered copyright or registered trademark of a third party that is enforceable; provided that KM: (a) is notified immediately after Customer receives notice of such claim; (b) is solely in charge of the defense of and any settlement negotiations with respect to such claim; (c) receives Customer’s reasonable cooperation in the defense or settlement of such claim; and (d) has the right, upon either the occurrence of or the likelihood (in the opinion of KM) of the occurrence of a finding of infringement or misappropriation, either to procure for Customer the right to continue use of the Software, Work Products and KSS, or to replace the relevant portions of the Software, Work Products and KSS with other equivalent, non-infringing portions. If KM is unable to accomplish either of the options set forth in (d) above, KM shall cause the infringing portion of the Software, KSS and Work Products to be removed and KM will refund to Customer the unused prepaid fees for such infringing portion of the Software, Work Products and KSS. Notwithstanding anything to the contrary, KM shall have no obligation to Customer to defend or satisfy any claims made against Customer that arise from: (1) the use, marketing, licensing or disposition of the Software, Work Products and KSS other than as permitted by this Agreement; (2) the combination of the Software, Work Products and KSS with any product not furnished by KM to Customer; (3) the modification or addition to of the Software, Work Products and KSS by any third party not approved of in writing by KM beforehand; or (4) the Customer’s business methods or processes. THIS SECTION STATES KM’S ENTIRE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY PROPERTY BY THE SOFTWARE, WORK PRODUCTS AND KSS.
4. CONFIDENTIAL INFORMATION
4.1 Confidential Information. Each party agrees that, with respect to the Confidential Information of the other party, during the term of this Agreement such party as a recipient shall at all times maintain the confidentiality of the other party’s Confidential Information, using the same degree of care that such party uses to protect its own confidential information, but in any event not less than reasonable care; and shall not use (except in performance of this Agreement) or disclose to any third party any such Confidential Information, except as may be required by law or court order. As used herein, “Confidential Information” shall mean information that is marked “Proprietary” or “Confidential,” that is known by the recipient to be confidential or that is of such a nature as customarily would be confidential between business parties, except as provided in the next sentence. Confidential Information shall not include information that: (a) is or becomes generally known to the public without breach of this Agreement by the recipient, or (b) is demonstrated by the recipient to have been in the recipient’s possession prior to its disclosure by the disclosing party, or (c) is received by the recipient from a third party that is not bound by restrictions, obligations or duties of non-disclosure to the disclosing party, or (d) is demonstrated by recipient to have been independently developed by recipient without breach of its obligations. Each party shall be liable and responsible for any breach of this Section committed by any of such party’s employees, agents, consultants, contractors or representatives. Customer shall not advertise or otherwise make public any past, current or future Order Form or any pricing information or other price lists of KM, and any documents, such as proposals, that contain such pricing information shall bear a confidentiality notice. Customer agrees not to disclose the terms and conditions of this Agreement to any third party without the prior written consent of KM.
4.2 Return of Confidential Information. The receiving party shall return to the disclosing party, destroy or erase all Confidential Information of the disclosing party in tangible form: (a) upon the written request of the disclosing party; or (b) upon the expiration or termination of this Agreement, whichever comes first, and in both cases, the receiving party shall promptly and in writing that it has done so. Except for the rights expressly described in this Agreement, Customer is not granted any rights to any KM patents, copyrights, trade secrets, trade names, trademarks (whether or not registered), or any other rights, franchises or licenses.
5. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE WARRANTIES PROVIDED BY KM AS EXPRESSLY SET FORTH IN THE SCHEDULES MADE PART OF THE AGREEMENT, KM AND ITS SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, KSS, WORK PRODUCTS, INFORMATION, TECHNICAL SUPPORT, VENDOR SOFTWARE, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED UNDER THE AGREEMENT, STATEMENT OF WORK, SERVICES PROPOSAL, ORDER FORM OR OTHER ORDERING DOCUMENT. KM AND ITS SUPPLIERS DISCLAIM AND EXCLUDE ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. KM AND ITS SUPPLIERS DO NOT WARRANT THAT ANY TECHNICAL SUPPORT, KSS, WORK PRODUCTS, INFORMATION, VENDOR SOFTWARE, TECHNICAL SUPPORT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE, KSS, ADD-ON SERVICES, VENDOR SOFTWARE, OR ANY WORK PRODUCTS PROVIDED UNDER THE AGREEMENT WILL BE UNINTERRUPTED. EXCEPT AS EXPRESSLY STATED IN THE AGREEMENT, KM DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE, VENDOR SOFTWARE OR SERVICES. KM SPECIFICALLY ASSUMES NO RESPONSIBILITY FOR THE CUSTOMER’S PURCHASE OF KM’S PRODUCTS AND SERVICES OR VENDOR SOFTWARE THAT CUSTOMER HAS DETERMINED WILL ACHIEVE ITS BUSINESS OBJECTIVES. KM MAKES NO WARRANTIES WITH RESPECT TO ANY SOFTARE, KSS, OR WORK PRODUCTS USED IN NON-PRODUCTION DEPLOYMENTS AND ENVIRONMENTS, ALL OF WHICH ARE PROVIDED “AS-IS”.
Any oral or written statements by KM, its representatives, employees or agents shall not be construed as creating any additional warranties. Only changes or additions authorized by corporate officers of KM shall modify the warranties provided in this Agreement.
6. LIMITATIONS OF LIABILITY
6.1 TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY, NOR ANY OF ITS AFFILIATES (AND IN THE CASE OF KM, ITS SUPPLIERS), SHALL BE LIABLE, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF REVENUE, GOODWILL, SAVINGS, OR PROFITS (EXCLUDING FEES DUE UNDER THE AGREEMENT); LOSS OR CORRUPTION OF DATA OR PROGRAMS; COSTS ASSOCIATED WITH REPLACEMENT OR THE REMEDY OF COVER; OR DAMAGES RESULTING FROM BUSINESS INTERRUPTION. THIS LIMITATION APPLIES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, EXPENSES, OR COSTS.
6.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KM, INCLUDING ITS AFFILIATES AND SUPPLIERS, SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE PRODUCTS OR SERVICES PROVIDED HEREUNDER, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, BEYOND THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO KM (LESS ANY REFUNDS OR CREDITS) FOR THE SPECIFIC PRODUCTS OR SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH CLAIM.
FOR ANY PRODUCTS OR SERVICES PROVIDED TO CUSTOMER FREE OF CHARGE (INCLUDING BUT NOT LIMITED TO EVALUATION SOFTWARE OR SERVICES), KM, ITS AFFILIATES, AND SUPPLIERS SHALL NOT BE LIABLE FOR ANY DIRECT DAMAGES.
6.3 THE LIMITATIONS PROVIDED IN SECTIONS 6.1 AND 6.2 SHALL NOT APPLY: (1) PAYMENTS TO A THIRD PARTY ARISING FROM KM’S INDEMNIFICATION OBLIGATIONS FOR INTELLECTUAL PROPERTY; (2) CUSTOMER’S PAYMENT OBLIGATIONS; (3) ANY CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF CUSTOMER’S PROHIBITED ACTS, OR EITHER PARTY’S FRAUD OR WILLFUL MISCONDUCT, OR (4) TO THE EXTENT SUCH LIMITATIONS ARE PROHIBITED BY LAW.
7. GENERAL PROVISIONS
7.1 Taxes. In addition to any other payments due under this Agreement, Customer agrees to pay, and to indemnify and hold KM harmless from, any sales, use, excise, import or export, value added or similar tax or duty not based on KM’s net income, including any penalties and interest, as well as any costs associated with the collection or withholding thereof; and all governmental permit fees, license fees and customs and similar fees levied upon the delivery by KM of the Software, KSS, or Professional Services or payments by Customer to KM, which KM may incur in respect of this Agreement.
7.2 Compliance With Laws. The parties shall comply with all applicable international, national, state, regional and local laws, ordinances, rules and regulations that apply to any aspect of the performance of its obligations under this Agreement or its business generally.
7.3 Export Restrictions. KM’s Software, Documentation, and technical data are subject to U.S. export jurisdiction, including the U.S. Export Administration Regulations (the “EAR”), and Customer will comply with the EAR and end-user and destination restrictions by the U.S. and other governments. Customer acknowledges and agrees that it has the responsibility to obtain any required licenses to export, re-export, or import Software, Documentation, technical data or any systems incorporating such Software, Documentation or technical data. Customer shall not undertake activities with or export to government entities, organizations, or nationals, business entities or individuals who are citizens of or located in any territory or nation with respect to which the United States maintains any commercial activities sanctions program (for more information visit: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). Customer shall not license, sell or otherwise transfer the Software, Documentation or technical date for any prohibited end uses under applicable laws and regulations.
7.4 Government Customers. The Software is a “commercial product,” as that term is defined at 48 C.F.R. 2.101, and is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 to -4. Accordingly, the terms of the Agreement shall control and no other Federal Acquisition Regulation (“FAR”) or Defense Federal Acquisition Regulation Supplement (“DFARS”) clauses shall apply with respect to the Agreement or the Software as defined herein.
7.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
7.6 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
7.7 Third Party Beneficiary. Customer acknowledges that third party software may be included with the Software and that such third parties are beneficiaries to this Agreement and this Agreement is enforceable by such third parties.
7.8 Independent Contractors. KM and Customer are independent contractors under this Agreement and nothing in this Agreement authorizes a party to act as a legal representative or agent of the other party for any purpose or to commit the other party to any obligations with a third party, including, but not limited to, any obligations related to such other party’s employees. It is expressly understood that this Agreement does not establish a franchise relationship, partnership, principal-agent relationship or joint venture.
7.9 Governing Law; Jurisdiction. This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Delaware (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. The State and Federal Courts located in Wilmington County, Delaware shall each have non-exclusive jurisdiction over disputes under this Agreement. Customer consents to the personal jurisdiction of the above courts.
7.10 Injunctive Relief. It is understood and agreed that, notwithstanding any other provisions of this Agreement, breach of the provisions of this Agreement by either party will cause the non-breaching party irreparable damage for which recovery of money damages would be inadequate, and that the non-breaching party shall therefore be entitled to obtain timely injunctive relief to protect the non-breaching party’s rights under this Agreement in addition to any and all remedies available at law.
7.11 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
7.12 Marketing and Publicity. Customer agrees that KM may use Customer’s name and may disclose that Customer is a licensee of KM products and services in KM advertising, promotion and similar public disclosures with respect to the Software and the KSS; provided, however, that such advertising, promotion or similar public disclosures shall not indicate, without Customer’s written consent, that Customer in any way endorses any KM products.
7.13 Assignment. Neither this Agreement nor any rights or obligations of Customer hereunder may be assigned, sold, or otherwise transferred by Customer in whole or in part (including by merger, reorganization, consolidation, sale of all or any portion of the assets of Customer or change in control of Customer) without the prior written approval of KM. For the purposes of this Section 7.13, a change in control means a change in the persons or entities who control fifty percent (50%) or more of the equity securities or voting interest of Customer as of the date of this Agreement. KM’s rights and obligations, in whole or in part, under this Agreement may be assigned by KM. KM may exercise full transfer and assignment rights in any manner at KM’s discretion and specifically may sell, pledge, or otherwise transfer its right to receive fees under this Agreement. Customer acknowledges that KM and/or any of its Affiliates may fulfill any of KM’s obligations contemplated by this Agreement.
7.14 Survival. All provisions of the Agreement which by their nature extend beyond the expiration or termination of this Agreement will survive and remain in effect until all obligations are satisfied. For clarity, this includes all provisions under this Agreement other than the Marketing and Publicity provision.
7.15 Non-Solicitation; Non-Hire. During the term of this Agreement and for one (1) year after the termination of this Agreement, neither Customer nor KM will: (a) solicit, for employment or for engagement as an independent contractor for the soliciting party or for any other third party, a person who is or was an employee of the other party or otherwise encourage or assist any such person to leave the employ of the other party for any reason, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party; or (b) hire or engage, directly or indirectly, as an employee or independent contractor a person who is or was an employee of the other party, in each case at any time during such person’s employment by the other party or within one year (1) after such person has ceased to be an employee of the other party. Each violation of this provision by a party entitles such other party to liquidated damages (not a penalty) from the hiring or engaging party in an amount equal to Fifty Thousand Dollars ($50,000.00), and all costs associated with the collection of such liquidated damages, including but not limited to reasonable attorneys’ fees.
7.16 Transition Services. Except for terminations arising under Section 1.2(a) of this Agreement, once a party has provided notice of termination or non-renewal to the other party pursuant, the parties will use their commercially reasonable efforts to reach agreement as to the appropriate transition of the services. Any transition services provided by KM shall be chargeable at KM’s then-current Professional Services rates. Pursuant to Customer’s written request, which must be received by KM within thirty (30) days after the termination or expiration of the Agreement or an applicable Order Form, KM will furnish to Customer, at KM ‘s then-current professional services rates, one copy of Customer’s data files in KM’s standard machine-readable format as may be maintained by KM from time to time in accordance with KM’s procedures and retention schedules. In the absence of such notice by Customer, KM may dispose of or destroy such data and any other materials at KM’s discretion, and in no circumstances later than the earlier of thirty (30) days after the termination or expiration of an Order Form for KSS or this Agreement.
7.17 Right to Engage in Other Activities. Customer acknowledges and agrees that KM may provide information technology services to other clients, including at any KM facility used to perform services under this Agreement. This Agreement does not grant Customer exclusivity, nor does it restrict KM from offering or developing similar or competing technologies or services for itself or others. KM retains the right to acquire, license, market, distribute, or have developed technologies or services that perform functions similar to those contemplated by this Agreement, provided such activities do not breach KM’s confidentiality or intellectual property obligations under this Agreement.
7.18 Vendor Software. Customer agrees that if any Vendor Software is identified on an Order Form that Customer has entered the applicable Vendor License Agreement for such software, and that the Vendor License Agreement shall remain in effect during the term of this Agreement. The Vendor License Agreement contains the exclusive license terms and product warranties for the Vendor Software, and KM’s duties are limited to performance of Professional Services, Technical Support, and hosting of such Vendor Software pursuant to an Order Form.
7.19 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
7.20 Notice. Unless otherwise agreed to by the parties in a writing signed by both parties, all notices required under this Agreement shall be deemed effective when made in writing and sent to each party, by either: (A) reputable overnight courier, specifying next day delivery to the address specified in the Agreement or last known business address of such party; or (B) email to the address below or such other email address provided by such party for such purpose, without receipt of a notice of failed delivery.
7.21 Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and proposals, oral or written, related to such subject matter. This Agreement may be amended or modified only by a written amendment signed by each party. All Order Forms submitted by Customer to KM shall be subject solely to the terms of this Agreement, and any preprinted terms on any purchase order form used for the convenience of Customers are objected to and shall not alter or amend the terms of this Agreement.
7.22 Feedback. If Customer shares ideas, suggestions, or comments with KM about KM’s products or services, then KM may may use, copy, modify, or share such feedback for any purpose without restriction whatsoever.
7.23 Regional Modifications. Customer agrees that the modifications described in Exhibit A, as may be updated from time to time, apply to the Agreement based on the KM entity identified on an Order Form.
8. DEFINITIONS
The defined terms below apply throughout this Agreement. Individual Schedules may include additional defined terms relevant to their specific provisions. Defined terms in this section may also incorporate terms defined in a particular Schedule, where applicable. If the same term is defined in multiple Schedules, each definition applies only within its respective Schedule. If the term also appears in the General Terms Schedule, it should be interpreted to include all relevant definitions, depending on the context.
“Add-On Service” means a software as a service offering provided by KM that provides additional or separate functionality or service to Customer’s Software solution or KSS.
“Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control with such party. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of more than 50% of the voting securities, by contract, or otherwise.
“Customer” means the Customer identified on an Order Form.
“Documentation” means (1) the “Help Files” included in the Software or KSS; or (2) if no such “Help Files” exist in the Software or KSS, then such other documentation published electronically by KM, in either case, which describes the functional, operational or performance characteristics of the Software or KSS. Documentation includes any Updates of Documentation which KM generally makes available to all of its customers during the term of this Agreement.
“Effective Date” means the date specified on the Order Form.
“Initial Term” means the initial three (3) year term of an Order Form, unless otherwise agreed by the parties in such Order Form.
“Intellectual Property Rights” or “IPR shall mean (i) patents, inventions, designs, copyright and related rights, database rights, trade marks and related goodwill, trade names (whether registered or unregistered) and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow; (iv) applications, extensions and renewals in relation to any of these rights; and (v) any other rights of a similar nature or having an equivalent effect anywhere in the world.
“KM” means KeyMark, Inc. and its Affiliates.
“KSS Platform” means the physical hardware and infrastructure whether owned by KM or a third-party service provider, the website hosted by KM through which the Customer will access the KSS and Customer Data stored in the KSS, and all third-party software products (other than those bundled with the Software) provided by KM as part of the KSS.
“KM SaaS” or “KSS” means KM’s use of the KSS Platform to provide the Software identified on an Order Form using software as a service basis (SaaS), and to host the Vendor Software identified on an Order Form. Customer will not receive a copy of the Software and Vendor Software.
“KSS Fees” means the amounts invoiced by KM and payable by Customer for the KSS.
“Order Form” means a document referencing the Agreement and that is accepted by KM (or a KM authorized reseller, if applicable) for a Customer’s purchase of Software, KSS, Professional Services, or other products or services, including, but not limited to, the associated fees, and other terms agreed to by the parties. For clarification purposes, a Work Order, Amendment, attachment, purchase order, or other similar document may be used as an Order Form.
“Prohibited Act” or “Prohibited Acts” means: (i) a violation of the Prohibited Conduct provisions of the General Terms; or (ii) any use or export of any Software, KSS, Work Products, or Documentation other than as expressly permitted by this Agreement.
“Professional Services” means implementation, configuration, consulting and such other professionals services identified on an Order Form.
“Software” means (a) KM’s proprietary products identified on an Order Form, including third party software bundled together by KM with KM’s proprietary products as a unified product; and (b) Updates of the products described in (a) that are delivered in accordance with this Agreement.
“Vendor License Agreement” means the license agreement between Customer and the licensor of any Vendor Software that is listed on an Order Form.
“Vendor Software” means the third-party software identified on an Order Form that Customer has licensed pursuant to a Vendor License Agreement.
“Vendor Software Fees” mean the fees included on an Order Form for the Vendor Software.
“Tools” means software development tools, know-how, methodologies, processes, technologies or algorithms used in performing Professional Services which are based on trade secrets or proprietary information of KM or are otherwise owned or licensed by KM.
“Work Product” means any ideas, concepts, processes, discoveries, developments, formulae, information, materials, methodologies, improvements, processes, designs, artwork, content, software, other copyrightable works, and any other work product created, conceived or developed by KM (whether alone or jointly with others), during the performance of this Agreement, including all applicable copyrights, patents, trademarks, trade secrets, and other applicable Intellectual Property Rights therein. Work Products do not include Customer’s Confidential Information.
Exhibit A
Regional Modifications
These terms modify the General Terms Schedule or any other terms or schedule in which the Regional Modifications are referenced. Customer agrees to the following modifications to this Agreement based on the KM company identified in the Order Form:
1. Keymark, LLC. When KeyMark, LLC is the KM entity, the following Governing Law; Jurisdiction section shall apply: This Agreement and any claim, action, suit, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Delaware (and not the 1980 United Nations Convention on Contracts for the International Sale of Goods, as amended), without regard to the conflicts of laws provisions thereof. The State and Federal Courts located in Wilmington County, Delaware shall each have non-exclusive jurisdiction over disputes under this Agreement. Customer consents to the personal jurisdiction of the above courts.
2. FileHold Systems ULC. When FileHold Systems ULC is the KM entity, the following Governing Law; Jurisdiction section shall apply: The Agreement, and all claims or causes of action (whether in contract, tort, equity or statute) that may be based upon, arise out of or relate to the Agreement, or the negotiation, execution or performance of the Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with the Agreement or as an inducement to enter into the Agreement), shall be governed by and construed in accordance with the laws of the Province of British Columbia and Canada, without regard to (a) the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Province of British Columbia and Canada, and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG), which is explicitly excluded. All disputes arising out of or in connection with the Agreement, including injunctive or other preliminary or interlocutory measures, will be resolved by the Courts of the Province of British Columbia, to the exclusion of the jurisdiction of any other courts. The Parties agree to submit to the sole jurisdiction of the Courts of the Province of British Columbia and will not raise any objection to the forum nor the jurisdiction of the Courts of the Province of British Columbia.
