1. DEFINITIONS.
“AI Agent” has the meaning given to it in Section 5.1.
“AI Agent Action” has the meaning given to it in Section 5.2.
“AI Services” has the meaning given to it in Section 5.1.
“AUP” means the Authorized Use Policy available at www.kentik.com/legal/ai-authorized-use-policy, which forms part of this Agreement.
“Customer Data” means any information that Customer inputs into the SaaS Services together with any resulting data output from the SaaS Services and which is made available to Customer or can otherwise be retrieved or accessed by Customer through the SaaS Services.
“Customer Equipment” means Customer’s computer hardware, software, and network infrastructure used to access and use the SaaS Services.
“Device” means each individual device (such as a single router, switch, chassis, or server) from which network traffic is collected in connection with the SaaS Services. Clusters are considered multiple devices and are excluded from the definition of a single Device.
“Initial Term” means the initial term for the SaaS Services specified in each Order Form.
“Input” has the meaning given to it in Section 5.1.
“Kentik Products” means all services and products offered by Kentik and ordered by Customer pursuant to each Order Form, including the SaaS Services and Professional Services.
“Kentik Prompts” has the meaning given to it in Section 6.2.
“Kentik Report Materials” has the meaning given to it in Section 6.2.
“Order Form” means a written document subject to this Agreement that is executed by both parties detailing the Kentik Products that Customer is ordering. The Order Form may contain additional terms applicable to the specific Kentik Products.
“Output” has the meaning given to it in Section 5.1.
“Professional Services” means the professional and consulting services that Kentik provides under an Order Form.
“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes. The term “Taxes” does not include taxes levied on Kentik’s own income and property.
“Term” means the Initial Term together with each renewal.
“SaaS Services” means the cloud-based software and related services provided by Kentik to Customer, including the AI Services, in each Order Form.
“SaaS Services Description” means the description of the applicable SaaS Services purchased by Customer in an Order Form, as further described at https://kb.kentik.com/v4/Aa01.htm#Aa01-Portal_Sections.
“Users” means Customer’s employees, contractors, and representatives who are authorized by Customer to use the SaaS Services on its behalf.
2. TERMS OF THE SAAS SERVICES. Subject to the terms of the Agreement and each Order Form, Kentik grants Customer a limited, non-exclusive, non-transferable right to access and use the SaaS Services solely for Customer’s internal business purposes in accordance with, and subject to, the restrictions set forth in this Agreement and each applicable Order Form during the Term. During the Term, Kentik may update and modify the features and functionality of the SaaS Services.
3. CUSTOMER RESPONSIBILITIES RELATING TO USE OF THE SAAS SERVICES AND KENTIK’S RIGHTS.
3.1 Customer is responsible for (i) obtaining and maintaining any Customer Equipment and any ancillary services needed to connect to, access, or otherwise use the SaaS Services, and (ii) ensuring that the Customer Equipment and any ancillary services are compatible with the SaaS Services and comply with all configuration requirements set forth in the SaaS Services Description.
3.2 Customer will not allow any person or entity other than its Users to use and access the SaaS Services. Customer is responsible for its Users’ acts and omissions with respect to the SaaS Services and for ensuring their compliance with this Agreement. Users may not share accounts to access the SaaS Services. Each User requires their own unique username and secure password to access the SaaS Services, and it must keep those credentials confidential. Customer will promptly notify Kentik if it knows or reasonably suspects that any account, including usernames and passwords, has been compromised. Customer shall not (nor permit its Users to): (i) resell, sublicense, lease, or time-share any Kentik Products to any third party unless bundled as part of Customer’s normal software and services offering (and not on a standalone basis) solely to the extent expressly permitted in an Order Form; (ii) send or store infringing, defamatory, offensive, harmful, or unlawful material using the SaaS Services, (iii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Kentik Products or data contained in the SaaS Services; (iv) modify, copy or create derivative works of or based on the Kentik Products; (v) decompile, disassemble, or reverse engineer any aspect of the Kentik Products; (vi) transmit Customer Data that contains viruses, worms, Trojan horses, spam, or other harmful computer code, files, scripts, agents, or programs or otherwise propagate any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; (vii) use or access the Kentik Products or Output for the purpose of building a competitive product or service or to copy any ideas, features, functionality, or graphics; (viii) use or access the SaaS Services to scrape content, data, or metadata from the SaaS Services or any related hardware, software, or services; (ix) use or access the Kentik Products or Output for the purpose of training any artificial intelligence or machine learning tool; (x) use or access the Kentik Products in violation of anyone’s intellectual property or privacy rights; (xi) permit access to or use of any Kentik Product by a direct competitor of Kentik; (xii) use or access the Kentik Products for purpose of a third party’s product evaluation, benchmarking, or other comparative analysis; or (xiii) use the AI Services in violation of the AUP.
3.3 If Customer or a User attempt to use the SaaS Services in excess of the usage limitations purchased in the Order Form, then the SaaS Services may generate a notice to Customer and limit data capture in excess of the usage limitations unless and until Customer purchases additional license rights.
3.4 Customer’s failure to comply with the restrictions set forth in Section 3.2 is a material breach of this Agreement. If Customer fails to comply with Section 3.2, then Kentik may suspend Customer’s access to the Kentik Products until such breach is cured. Where practical, Kentik will give Customer advance notice of and an opportunity to cure any breach of Section 3.2 prior to suspending Customer’s access to the Kentik Products.
4. PROFESSIONAL SERVICES.
4.1 Kentik shall provide Customer with the Professional Services set forth in each Order Form. Customer will provide Kentik with reasonable access to its personnel (including decisionmakers) and other resources as necessary for Kentik to successfully perform the Professional Services. Kentik is entitled to rely on all decisions and approvals of Customer in connection with the Professional Services.
4.2 Kentik is not responsible for delays or its inability to perform Professional Services, including missed deadlines, caused by Customer’s acts or omissions, including Customer’s failure to meet project deadlines, timely give approvals, fulfill its obligations set forth in any Order Form, or provide Kentik with necessary information or adequate working conditions, including, without limitation, equipment, space, personnel, or technical support. Such delays may result in additional fees or expenses.
4.3 Professional Services will be deemed accepted if Customer does not reject them within 10 days after performance by providing written notice specifying how they fail to materially comply with the applicable requirements specified in the Order Form.
4.4 Kentik warrants (i) it will provide the Professional Services in a professional and workmanlike manner consistent with good industry standards and practices; and (ii) that for a period of 30 days after completion, the Professional Services will conform to the representations made in the applicable Order Form. As Customer’s sole and exclusive remedy and Kentik’s entire liability for any breach of the foregoing warranty, Kentik will repair or re-perform the Professional Services.
5. AI SERVICES.
5.1 Kentik may offer Customer the ability to access, use, and authorize certain customer-facing generative artificial intelligence features as part of the SaaS Services (“AI Services”), including agentic tools (“AI Agents”) and chat interfaces, for network troubleshooting and analysis capabilities. The AI Services may retrieve or process Customer Data to generate automated responses, analyses, action plans, and conclusions (collectively, “Output”) in response to a prompt or query (“Input”). Customer Data contained in the Inputs will remain Customer’s Confidential Information, and, as between the parties, Customer will own the content of the corresponding Outputs (but not, for example, the Kentik Prompts or Kentik Report Materials). In connection with some of the AI Services, Customer may have the option to integrate its own third-party model as further described in Section 9.6, and in such case, the foregoing sentence is subject to Customer’s underlying agreement for such third-party model. Customer acknowledges that certain features or capabilities of the SaaS Services may be diminished in functionality or performance if it decides not to use the AI Services.
5.2 Customer acknowledges that, due to the nature of machine learning and artificial intelligence, the AI Services may generate Output for Customer that is similar to output generated for other Kentik customers and users of the AI Services. The AI Services may generate Output that is inaccurate, incorrect, or otherwise undesirable or it may hallucinate or confabulate. Customer is responsible for independently verifying any Output before relying on it for any purpose. Customer is responsible for determining the suitability of the AI Services for Customer’s use case. Each AI Agent action that Customer authorizes or enables based on the recommendation, report, or other information in the Output, including, for example, executing on troubleshooting steps, performing diagnostics, and implementing configuration changes or feature toggles in Customer’s network environment (each, an “AI Agent Action”) is at Customer’s direction and under Customer’s control and decision-making authority and Customer is solely responsible for the AI Agent Actions as if Customer had performed such actions. THE ACCURACY AND QUALITY OF, AND RIGHTS TO, THE OUTPUT AND EACH ASSOCIATED AI AGENT ACTION DEPEND ON THE QUALITY AND CONTEXT OF CUSTOMER DATA AND THE INPUTS IN ADDITION TO CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT TO THE EXTENT ARISING FROM KENTIK’S BREACH OF SECTION 9.4, KENTIK IS NOT LIABLE OR RESPONSIBLE FOR ANY LOSS OR DAMAGES RELATING TO THE AI SERVICES, AI AGENT ACTIONS, OUTPUT, OR THEIR USE BY CUSTOMER OR ANY OTHER PARTY.
6. OWNERSHIP AND USE.
6.1 Customer retains its ownership rights in the Customer Data and its Confidential Information. Kentik and its subcontractors may monitor Customer’s use of the Kentik Products and use, modify, and process Customer Data, Inputs, and Outputs to provide, maintain, develop, optimize, and improve the Kentik Products for Customer, to verify general updates and improvements to the SaaS Services, and to comply with applicable law.
6.2 Kentik retains all ownership rights in the Kentik Products, including any modifications or enhancements thereto and derivatives thereof, any work developed or created by Kentik while providing product support, any prompts it develops or refines in connection with the Kentik Products including those prompts it shares with Customer to use as part of the Inputs (collectively, “Kentik Prompts”), and any report format and structure, the underlying methodology used to orchestrate Output, and general statistical information shared with Customer (collectively, “Kentik Report Materials”). Customer does not own, nor does it gain any ownership rights in or to, any Kentik Products by virtue of this Agreement or any Order Form. No rights are implied or granted to Customer beyond those expressly set forth herein or in an Order Form.
6.3 Customer represents and warrants that (i) it has obtained and will maintain all necessary rights and consents necessary to access and use Customer Data and Inputs as contemplated by this Agreement and (ii) Kentik’s use of the Customer Data and Inputs in accordance with this Agreement and the Order Forms will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
6.4 Kentik will own and have a royalty-free right to use and exploit any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the Kentik Products.
7. FEES. This Section 7 is only applicable to the extent that Customer has a direct payment obligation to Kentik. It does not apply to any fees owed to Kentik’s resale partners nor modify the terms of any order for Kentik Products placed with such resale partners.
7.1 Customer shall pay the fees specified in each Order Form. Fees for the Initial Term of each Order Form are due upon the Effective Date of the Order Form. Fees for renewals are due on the effective date of the renewal.
7.2 The payment obligations set forth in each Order Form are non-cancelable and, except as expressly provided in this Agreement, all payments made by Customer are non-refundable. Undisputed fees are due and payable within 30 days after receipt of the applicable invoice unless otherwise stated in an Order Form. Customer’s failure to timely pay undisputed fees owed will incur late charges at the lesser of rate of 1.5% per month or the maximum rate permitted by law. Customer’s failure to make undisputed payments in accordance with this Section may also result in the suspension of Customer’s ability to use and access the Kentik Products until such payments are made. If Customer issues purchase orders in its normal course of business, then Customer shall provide Kentik with a purchase order upon execution of this Agreement. However, if Customer does not provide Kentik with such purchase order prior to its execution of this Agreement, then Customer hereby authorizes Kentik to accept this Agreement without a purchase order.
7.3 Kentik’s fees do not include any Taxes. Customer is responsible for all applicable Taxes arising in connection with this Agreement and each Order Form. Customer may not offset or deduct its tax liability from the fees payable to Kentik. For countries where Kentik is not registered to collect indirect Taxes (e.g., VAT or GST), Customer will directly pay applicable Taxes via reverse charge mechanism to the appropriate tax authority. Kentik will consider Kentik Products as being solely provided to Customer at and consumed by Customer at the location(s) identified by the VAT or GST identification number(s) it provides to Kentik. Taxes not included on a Kentik invoice are the responsibility of the Customer to remit to the appropriate tax authorities as necessary. If applicable, Customer will provide Kentik with any Tax exemptions or certificates it holds prior to the execution of this Agreement and will promptly notify Kentik if any such exemption or certificate is subsequently revoked or modified.
7.4 Customer shall reimburse Kentik for all reasonable, pre-approved, and appropriately documented travel and related expenses incurred by Kentik in performing Professional Services at Customer’s location. Customer is responsible for its own travel and out-of-pocket expenses associated with attending any training services at a Kentik facility.
8. SUPPORT AND SLAs. Kentik shall provide Customer with the Kentik Product support and follow the service levels specified in Kentik’s standard support and service level agreement policy, which can be found at https://www.kentik.com/legal/agreements/support-and-sla.
9. WARRANTIES.
9.1 Each party represents and warrants that (i) it is a duly organized and validly existing under the laws of the jurisdiction in which it is established and has the legal power to enter into and perform under this Agreement; and (ii) the execution, delivery, and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment, or understanding, oral or written, to which it is a party or by which it may be bound.
9.2 Kentik warrants that it will use reasonable efforts to ensure that the Kentik Products do not knowingly contain or introduce into Customer’s systems any virus, malicious software code, or functionality that enables unauthorized access to or which is otherwise designed to harm Customer’s systems, servers, computers, or websites.
9.3 Kentik warrants that the SaaS Services will substantially conform in all material respects in accordance with the SaaS Services Description for a period of 30 days following delivery. Customer will provide prompt written notice of any non-conformity. As Customer’s sole and exclusive remedy and Kentik’s entire liability for any breach of the foregoing warranty, Kentik will confirm the existence of such non-conformity and then fix, provide a workaround for, or otherwise repair or replace the non-conforming portion of the SaaS Services, or, if Kentik is unable to do so, terminate Customer’s right to use the non-confirming SaaS Service(s) and refund the fees paid for the terminated SaaS Service(s) for the period beginning with Customer’s notice of non-conformity through the remainder of the unused, prepaid Term. The foregoing warranty does not apply if the SaaS Services are not used in accordance with the SaaS Service Descriptions or are used in breach of this Agreement.
9.4 Kentik represents and warrants that its contracts with third-party providers involved in the delivery of the AI Services will prohibit them from either (i) retaining Customer Data or Inputs for their own purposes (excluding short holds for fraud and abuse monitoring) or (ii) using Customer Data or Inputs to train any artificial intelligence models.
9.5 EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SAAS SERVICES, AI AGENT ACTIONS, AND OUTPUTS ARE PROVIDED “AS IS” AND KENTIK DOES NOT MAKE ANY WARRANTIES OF ANY KIND – IMPLIED, STATUTORY, OR OTHERWISE – INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. KENTIK DOES NOT WARRANT THAT THE SAAS SERVICES, AI AGENT ACTIONS, OR OUTPUTS WILL BE UNINTERRUPTED OR ERROR-FREE.
9.6 Certain features and functionalities within the SaaS Services may allow Customer to integrate or interface with, access, or use compatible third-party services, products, technology, models, and content (collectively, “Third-Party Services”) via the SaaS Services. Kentik does not provide any aspect of the Third-Party Services and therefore is not responsible for any compatibility issues, errors, or bugs in any Third-Party Services. Customer is solely responsible for its use of the Third-Party Services and for obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the SaaS Services. The Third-Party Services’ terms will govern Customer’s use of the Third-Party Services, including the restrictions and rights with respect to input and output data generated thereby, if applicable.
10. INDEMNITY.
10.1 Kentik shall indemnify Customer and its officers, directors, employees, subsidiaries and shareholders against any loss or liability (including reasonable attorneys’ fees) resulting from a third-party claim (“Claims”) alleging that (i) Customer’s compliant use of any of the SaaS Services infringes upon or misappropriates the intellectual property rights of a third party or (ii) Kentik has violated any applicable statute, law, ordinance, or regulation applicable to its business and the SaaS Services. Kentik has no obligation to indemnify for infringement or misappropriation Claims to the extent such Claim is based upon: (1) Customer’s use of the SaaS Services in combination with any product, service, or device not furnished, recommended, or approved in writing by Kentik, including any Third-Party Services, provided that such infringement or misappropriation would not have occurred but for such combination; (2) Customer’s use of the SaaS Services in breach of this Agreement; (3) unauthorized modifications made to the SaaS Services; or (4) any Customer Data, Input, or Output. If any SaaS Service is determined to be infringing, then Kentik will, at its sole option and expense, either: (a) procure for Customer the right to continue using that SaaS Service; (b) replace or modify the SaaS Service to be non-infringing without a material decrease in functionality; or (c) if the foregoing options are not reasonably practicable in Kentik’s reasonable determination, then Kentik will terminate Customer’s right to use the infringing SaaS Service and refund Customer the prepaid fees for the remainder of the Term as measured from the date of termination with respect to that SaaS Service. The provisions of this Section 10.1 set forth Kentik’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to Claims of infringement or misappropriation.
10.2 Customer shall indemnify Kentik, its officers, directors, employees, subsidiaries and shareholders against any loss or liability (including reasonable attorneys’ fees) resulting from a Claim related to (i) Customer’s use of any Kentik Product in breach of this Agreement or the applicable Order Form or (ii) Customer Data or Inputs.
10.3 A party seeking indemnification hereunder (“Indemnified Party”) will notify the other party (“Indemnifying Party”) in writing of the Claim and reasonably cooperate with them to defend or settle the Claim. Indemnified Party’s failure to promptly notify Indemnifying Party of a Claim will not nullify, waive, or excuse Indemnifying Party’s indemnity obligations hereunder unless and only to the extent that such delay in notification materially impedes Indemnifying Party’s ability to adequately defend or settle the Claim. Indemnifying Party will have the full authority to defend or settle the Claim provided that: (i) the settlement does not admit fault, impose any obligation (monetary or otherwise) on Indemnified Party without its consent, and results in a full and unconditional release of liability for Indemnified Party; and (ii) Indemnified Party may participate in the defense or settlement of any Claim with counsel of its choice at Indemnified Party’s expense.
11. CONFIDENTIALITY AND DATA SECURITY.
11.1 “Confidential Information” means all information disclosed by or on behalf of one party (“Discloser”) to the other party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information does not include any information that: (i) is or becomes generally known to the public through no wrongful act or omission of Discloser; (ii) was already known to Recipient prior to its disclosure; (iii) was independently developed by Recipient without use of or reference to Confidential Information; or (iv) is received from a third party without confidentiality restrictions.
11.2 Recipient shall (and shall require its Representatives to): (i) keep Confidential Information secret and protect it as if it were its own Confidential Information, using at least a reasonable standard of care; (ii) not disclose Confidential Information to unauthorized third parties; (iii) only use Confidential Information for the purposes specified in this Agreement except with Discloser’s prior written consent; and (iv) promptly notify Discloser if it becomes aware of any unauthorized use or disclosure of Confidential Information. Each party may disclose Confidential Information to its employees and representatives that have a bona fide need to know such Confidential Information in furtherance of the Agreement (“Representatives”) provided that each Representative is bound by confidentiality obligations similar to those contained in herein. Recipient is responsible for its Representatives’ use and disclosure of Confidential Information and shall ensure their compliance with this Agreement.
11.3 If Recipient is compelled by law to disclose Confidential Information, it shall provide Discloser with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. Recipient will limit its disclosure to what it is legally required to disclose.
11.4 Upon Discloser’s request, Recipient shall promptly return or destroy all documents and other tangible materials containing Discloser’s Confidential Information, including copies thereof. Upon request, Recipient shall also certify its compliance with this obligation. Notwithstanding the foregoing, Recipient may retain a copy of Confidential Information to the extent required by law or as automatically archived pursuant to standard backup processes provided that the terms of this Agreement will continue to apply to any Confidential Information that remains in Recipient’s possession for as long as it remains in its possession notwithstanding the termination or expiration of this Agreement.
11.5 Kentik shall implement and maintain appropriate physical, technical, and administrative security measures designed to secure Customer Data against unauthorized disclosure in accordance with applicable laws and regulations. Without limiting the foregoing, Kentik will implement security measures that are consistent with industry standards as well as comply with the controls and principles set forth in the Kentik Security Overview found at: https://www.kentik.com/pdfs/KentikSecurityOverview.pdf.
11.6 Kentik shall (i) only use and process Customer Data to provide the Kentik Products to Customer and its Users in accordance with this Agreement and Customer’s written instructions; and (ii) keep Customer Data logically separate from other data and information that is held by Kentik. For purposes of clarity, the provisions above apply to all Customer Data, including but not limited to information that identifies or directly relates to natural persons that is regulated by applicable data privacy laws. Kentik shall promptly comply with any request from Customer to delete Customer Data in its possession. Kentik will provide Customer with the means to access, delete, or extract Customer Data during the Term as further described in and subject to https://www.kentik.com/pdfs/KentikCustomerDataExtractionOptions.pdf. If Kentik receives any third-party communication relating to the processing of information that identifies or directly relates to natural persons, to the extent legally permitted, Kentik shall promptly notify Customer and provide reasonable cooperation and assistance to Customer in addressing the communication. Kentik shall provide Customer with reasonable assistance to help it comply with its obligations under the applicable data protection laws. Without limiting the generality of the foregoing, each party shall comply with the Data Processing Addendum found at https://www.kentik.com/pdfs/KentikDataProtectionAddendum.pdf which is incorporated herein by reference.
12. LIMITATION OF LIABILITY.
12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO DAMAGES FOR BUSINESS INTERRUPTION, LOST BUSINESS, LOST PROFITS, CHANGES IN STOCK PRICE, OR DAMAGE TO GOODWILL, EVEN IF A PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY UNDER WHICH SUCH DAMAGES ARE SOUGHT.
12.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT (i) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (ii) FOR CUSTOMER’S FAILURE TO PAY ANY FEES DUE UNDER THIS AGREEMENT; (iii) EITHER PARTY’S UNAUTHORIZED USE, DISTRIBUTION, OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY; (iv) FOR FRAUD INTENTIONAL MISCONDUCT; OR (v) EITHER PARTY’S MATERIAL BREACH OF SECTION 11, IN NO OTHER EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE ANNUALIZED FEES OWED OR PAID FOR THE KENTIK PRODUCTS GIVING RISE TO THE CLAIM UNDER THE APPLICABLE ORDER FORM DURING THE 12 MONTHS PRIOR TO WHEN THE CLAIM ACCRUED.
12.3 THE PARTIES’ LIABILITY FOR THEIR INDEMNIFICATION OBLIGATIONS, AND MATERIAL BREACHES OF SECTION 11 WILL BE LIMITED TO THE GREATER OF (i) THREE TIMES THE ANNUALIZED FEES OWED OR PAID FOR THE KENTIK PRODUCTS GIVING RISE TO THE CLAIM UNDER THE APPLICABLE ORDER FORM DURING 12 MONTHS PRIOR TO WHEN THE CLAIM ACCRUED AND (ii) $1,000,000.
13. TERM AND TERMINATION.
13.1 This Agreement commences on the Effective Date and continues until all Order Forms have expired or have been terminated. The Initial Term applicable to each Order Form commences upon the effective date listed in the Order Form or if there is no such date, upon Customer’s execution of such Order Form. Each Order Form will automatically renew for an additional 12 months at the then-current price of the Kentik Products unless either party provides written notice of non-renewal to the other at least 60 days prior to the scheduled end of the current Term.
13.2 A party may terminate this Agreement or an Order Form for cause: (i) upon 30 days’ prior written notice to the other party of a material breach of this Agreement or such Order Form if such breach remains uncured at the expiration of such period; or (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding.
13.3 Either party may terminate the Agreement immediately by written notice if no Order Form is in effect.
13.4 Upon early termination of this Agreement all outstanding Order Forms will also terminate. Upon termination of an Order Form Customer and its Users shall cease all use of the applicable SaaS Services. All provisions of this Agreement which are by their nature intended to survive the expiration or termination of this Agreement will survive such expiration or termination.
14. GENERAL.
14.1 Kentik’s relationship with Customer is that of an independent contractor, and no partnership, franchise, joint venture, agency, fiduciary, or employment relationship is created by this Agreement.
14.2 Notices must be in writing, and either sent electronically via email or using a reputable mail carrier. Notices are deemed effective upon proof of delivery to the designated contact information specified in this Agreement or in the applicable Order Form.
14.3 This Agreement represents the final and complete agreement and understanding between the parties with respect to the subject matter hereof and supersedes any prior agreement or understanding that the parties might otherwise have related thereto (including any previously executed evaluation agreements). Each party acknowledges that it is entering into this Agreement solely based on the terms contained herein and that it has not relied upon any extraneous representations, warranties, promises, or inducements of any kind. No pre-printed order form, purchase order, click-through or click-wrap agreement, or other business form employed by Customer will supersede, modify, subtract, or add to the terms and conditions of this Agreement or an Order Form, and any such documents will be for administrative purposes only and have no legal effect. This Agreement can only be modified by a written agreement signed by both parties.
14.4 Kentik is not liable to Customer for any unexpected delays or failures to perform obligations hereunder that are due to causes beyond its reasonable control, such as acts of God, natural disasters, war, actions or decrees of governmental decrees, or internet or telecommunications disruptions. Kentik will promptly notify Customer after it becomes aware of the occurrence of any force majeure condition affecting its performance. If Kentik becomes subject to a force majeure event and cannot resume operations within 10 business days, then Customer will be able to terminate any affected Order Forms and receive a refund of any prepaid, unused fees therefore upon written notice to Kentik.
14.5 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to any successor in interest other than a direct competitor of the other party in connection with a merger, reorganization, or sale of all or substantially all assets or equity. Any attempted assignment in breach of this Section will be void. This Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns. For clarity, Kentik may use subcontractors in the ordinary course of its business. Kentik will be liable for its subcontractors’ performance and compliance with this Agreement.
14.6 Kentik may (i) access and monitor Customer’s use of the Kentik Products for Kentik’s own business purposes and (ii) use Customer Data, Inputs, and Outputs on a de-identified and aggregated basis in a manner that does not disclose Customer as the source of the underlying Customer Data. Such uses may include, but are not limited to, enabling the sharing of network alerts and vulnerabilities and other network issues Kentik discovers through its provision of the Kentik Products. In addition, Kentik may include information about Customer’s autonomous system (“AS”) as part of its border gateway protocol (“BGP”) monitoring AS path results and visualizations, which, as a whole (including those of other Kentik customers) may benefit Customer and help in Kentik’s analysis and troubleshooting by making the BGP data set richer.
14.7 This Agreement will be governed exclusively by the laws of the state of California without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
14.8 The parties will make good faith efforts to first resolve internally any dispute arising in connection with this Agreement or any Order Form by escalating it to higher levels of management. If the parties are unable to informally resolve their dispute within 30 days, then such dispute will be resolved via third-party arbitration pursuant to the JAMS Comprehensive Arbitration Rules & Procedures (or their functional successor). Such arbitration will be held in San Francisco, California. The arbitrator may award the prevailing party reasonable attorneys’ fees and expenses (including the arbitrator’s fees and expenses) incurred in connection with the dispute, claim, or controversy. This provision does not preclude the parties from seeking injunctive, provisional, or temporary relief.
14.9 There are no third-party beneficiaries to this Agreement.
14.10 Each party shall comply with all laws and regulations applicable to the performance of their obligations under this Agreement and each Order Form, including Customer with respect to its use of the Kentik Products. Each party shall comply with all applicable regulations of the United States Department of Commerce and the United States Export Administration Act in addition to any applicable laws and regulations of other jurisdictions related to the importation and use of the Kentik Products. Without limiting the generality of the foregoing, Customer represents and warrants that Customer and its personnel, in addition to all Users, are not persons or entities whose names appear on the List of Specially Designated Nationals or Blocked Persons maintained by OFAC; or who reside in a Non-Cooperative Jurisdiction or in a Sanctioned Regime location. Customer shall not permit any User to use Kentik Products in violation of these restrictions.
14.10 Kentik may reference Customer as a customer and include its name on customer lists on Kentik’s website or other similar materials.
14.11 Kentik shall maintain at minimum the following types and limits of insurance at its own expense during the Term: (i) Commercial General Liability coverage with minimum limits of $1,000,000 per claim and $2,000,000 in the aggregate; and (ii) Errors and Omissions coverage, including cyber liability, with minimum limits of $5,000,000 per claim and in the aggregate. The foregoing coverage may be achieved either directly or through a combination of policies. Policies will be issued by reputable insurance carriers and either issued on an occurrence basis or maintained for at least two years following the termination of this Agreement. Upon Customer’s request, Kentik will provide Customer with a certification evidencing the coverage required by this provision.
14.12 No delay or failure by a party to enforce any of its rights under this Agreement will act as a waiver of its to later enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise of these rights.
14.13 If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be deemed severed from this Agreement and have no legal effect. Provided that the fundamental terms and conditions of this Agreement remain legal and enforceable following the severance of any provision, the remainder of this Agreement will remain operative, in full force and effect, and binding upon the parties