Standard Service Agreement
These Terms and Conditions (“Agreement”) are agreed between Kentik Technologies, Inc. (“Kentik”) and its Customer (each a “Party”), and govern Customer’s access to and use of Kentik products and services (the “Services” or individually, a “Service”).
1 DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
1.1 “Affiliate” means and includes any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means the ownership of, or the power to vote, at least fifty percent (50%) of the voting stock, shares or interests of such entity.
1.2 “Customer Data” means information which Customer inputs, or provides to Kentik for inputting, into the Services and, if applicable, any other data that is provided by Customer to Kentik as part of Customer’s use of the Services.
1.3 “Customer System” means software, hardware, systems or data (including Customer Data) owned, utilized or held by Customer, but excluding any Kentik Technology.
1.4 “Confidential Information” means all information or data (whether in written, oral, electronic or other form) designated by the disclosing Party as confidential or related to the disclosing Party’s products (including the discovery, invention, research, improvement, development, manufacture, or sale thereof), processes, or general business operations (including sales, costs, profits, pricing methods, organization, and employee and customer lists), and any information of the foregoing nature received from the Party related to the Party’s customers or clients, which, if not otherwise described above, is of such a nature that a reasonable person would believe it to be confidential or proprietary. Confidential Information includes all Customer Data and related Output (where Customer is the disclosing Party) and all Kentik Technology (where Kentik is the disclosing Party).
1.5 “Hosting Environment” means the facilities and environment managed or used by either Party with respect to the provision of the Services pursuant to this Agreement, including software, and the servers, hardware, networks, equipment, and telecommunications facilities and technology installed or used within such environment. The Hosting Environment includes the Customer System where Customer is hosting any portion of the Kentik Technology for the Services, and includes Kentik Technology where Kentik is providing hosting Services.
1.6 “Intellectual Property Rights” means any and all right, title and interest in and to any and all trade secrets, United States patents, copyrights, service marks, trademarks, know-how, trade names, rights in trade dress and packaging, moral rights, rights of privacy, publicity and similar rights of any type, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.
1.7 “Kentik Technology” means the Services and the software, databases, content, documentation, websites, programs or other applications relating to the Service provided or made available by Kentik for use by Customer for its Permitted Use, and includes Output.
1.8 “Output” means any and all charts, graphs, reports, statistics and other information output from the Service that is made available to Customer or can otherwise be retrieved or accessed by Customer through the Service.
1.9 “Personnel” means the employees and subcontractors of Customer and its Affiliates.
1.10 “Permitted Use” means the Customer’s business purpose and other use restrictions set forth in this Agreement.
1.11 “Service Standards” means the applicable standards for Services being provided to Customer as described in the applicable Service Attachment.
1.12 “Subscription Term” means the term for Customer’s subscription to the applicable Service specified in an ordering document including any renewals.
2 ACCESS TO SERVICES; RESTRICTIONS
2.1 Access to Services; Use of Output. Each Service Attachment specifies the terms of Customer’s Permitted Use of, and access to, the applicable Service and other Kentik Technology. In addition, subject to the terms and conditions of this Agreement, Kentik grants to Customer a non-exclusive license to copy, distribute, modify, create derivative works of or otherwise use in furtherance of the Permitted Use, any Output (to the extent such Output does not already constitute Customer Data or other property of Customer).
2.2 Authorized Users. The Kentik Technology may be used and accessed by or on behalf of Customer by its Personnel in accordance with this Agreement, provided that all such usage must be for, and within the scope of, the Permitted Use.
2.3 Restrictions. All rights not expressly granted to Customer in this Agreement are reserved to Kentik and, if applicable, its licensors. Customer acknowledges that the Kentik Technology contains valuable confidential information and trade secrets and that unauthorized use and/or copying would be harmful to Kentik. Accordingly, Customer will not nor permit any Personnel or other agent or third party to: (i) decompile, disassemble, or otherwise reverse engineer the Kentik Technology (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) sell, rent, lease, sublicense, distribute or use the Kentik Technology (or any portion thereof) for time sharing purposes or to provide services to any third party or otherwise for the benefit of any third party; (iii) modify, translate or create derivative works of the Kentik Technology; (iv) aggregate, copy or duplicate any portion of the Kentik Technology; (v) remove, disable, damage, circumvent or otherwise interfere with the security and proper working of the Kentik Technology or attempt to gain unauthorized access to the Kentik Technology or attempt to avoid payment obligations; (vi) publicly disseminate Software performance information or analysis (including without limitation benchmarks) relating to the Services except with Kentik’s prior written consent; (vii) use the Kentik Technology in an illegal way or to commit an illegal act or transmit through the Services any infringing, obscene, threatening, harmful, libelous, unlawful or otherwise objectionable material, including material that violates any privacy rights; (viii) access or use the Kentik Technology from a jurisdiction where it is illegal, unauthorized or penalized; or (ix) access or use the Kentik Technology to build or improve a competitive product or service.
2.4 Proprietary Rights Notices; Publicity. Customer further agrees that it will not (i) remove any copyright or proprietary notices contained in the Kentik Technology or in the Output; or (ii) use or display any Kentik trademarks except as authorized in writing by Kentik. Kentik agrees that it will not issue any press release, use Customer’s name, logo or trademarks or otherwise make any public statements or communications regarding the existence or content of this Agreement or the relationship of the parties without Customer’s prior written consent in each case; provided that, without such consent, Kentik may list Customer’s name in Kentik’s customer lists on Kentik’s website and in its marketing materials to prospective customers.
2.5 Ownership of Kentik Technology. Except for the rights expressly granted to Customer under this Agreement, Kentik owns and will continue to own all right, title and interest (including all related Intellectual Property Rights), in and to the Kentik Technology and any modifications or derivative works thereof created by or for Kentik, including any created in connection with the Service or Output, excluding any Customer Data that may be part of the Output. Kentik may make changes to the Services at any time without notice. If Customer or any user chooses to provide Kentik any feedback or recommendations regarding the Services or other Kentik Technology, Kentik is free to use and exploit in any way such feedback and recommendations without restriction or liability to Customer or any third party, including payment of any royalty or other fees.
2.6 Ownership and Rights in Customer Data. As between Customer and Kentik, and except for the rights granted to Kentik under this Agreement, Customer owns and will continue to own all right, title and interest (including all related Intellectual Property Rights), in and to the Customer Data, including as part of the Output, and the Client System. Kentik may access and use Customer Data to the extent necessary to provide, support and improve the Service under this Agreement and for its own business purposes on an anonymized and aggregated basis in a manner that does not disclose Customer as the source. Kentik will not: (i) copy, modify, or create derivative works of the Customer Data (except as otherwise permitted in this Agreement); or (ii) sell, disclose, transfer, share or rent any Customer Data. Notwithstanding anything in this Section 2 or otherwise in this Agreement, the Kentik Technology may include certain third party code covered by third party licenses, as identified by Kentik in the applicable Service Attachment, even if contrary to this Agreement.
2.7 Non-Exclusivity. Nothing in this Agreement will be deemed to create any exclusive obligation on the part of either Party.
3 REPRESENTATIONS, WARRANTIES, COVENANTS
3.1 Kentik’s Representations, Warranties and Covenants. Kentik represents and warrants to Customer that:
3.1.1 Due Authority. Kentik has full right, power and authority to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Kentik may have to any other party;
3.1.2 Standard of Performance. Any Customer-specific support services will be performed by Kentik in a professional manner, by qualified and skilled individuals, in conformity with standards generally accepted in Kentik’s industry, and the Services will conform substantially in compliance with Kentik’s applicable documentation in accordance with the terms and conditions of this Agreement;
3.1.3 Compliance with Laws. Kentik’s performance of its obligations under this Agreement will be in compliance with any statutes, orders and regulations, including, without limitation, those relating to privacy and data protection, in the United States that are applicable to such performance; and
3.1.4 Non-Infringement. The Kentik Technology as provided by Kentik do not and will not infringe, violate, or misappropriate the Intellectual Property Rights of any third party.
3.2 Exclusive Remedies. In the event of Kentik’s breach of the warranties set forth in Section 3.1.1 or 3.1.4, Customer’s sole and exclusive remedy and Kentik’s exclusive liability and obligation, will be Kentik’s obligations under Section 6. In the event of Kentik’s breach of the warranties set forth in Section 3.1.2, Customer’s sole and exclusive remedy and Kentik’s exclusive liability and obligation, will be as provided in the applicable Service Standards.
3.3 Customer’s Representations, Warranties and Covenants. Customer represents and warrants to Kentik that:
3.3.1 Due Authority. Customer has full right, power and authority to enter into and perform this Agreement without the consent of any third party, and its performance under this Agreement will not conflict with any other obligation Customer may have to any other party;
3.3.2 Compliance with Laws. Customer’s performance of its obligations under this Agreement will be in compliance with any statutes, orders and regulations, including, without limitation, those relating to privacy and data protection, in the United States that are applicable to such performance;
3.3.3 Non-Infringement. The Customer Data as provided by Customer do not and will not infringe, violate, or misappropriate the Intellectual Property Rights of any third party.
3.4 No Viruses. Each Party will use standard, commercially available software to detect whether the Kentik Technology (in the case of Kentik) or the Customer System (in the case of Customer) has any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code (sometimes referred to as “traps”, “access codes” or “trap door” devices), designed to permit unauthorized third party access to the other Party’s technology, systems or environment, and the Party will remove any such destructive code that is so identified.
3.5 Warranty Disclaimers. EXCEPT FOR THE WARRANTIES SET FORTH IN THESE MASTER TERMS OR IN ANY SERVICE ATTACHMENT, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND ALL OUTPUT ARE PROVIDED BY COMPANY ON AN “AS IS” AND “AS AVAILABLE” BASIS ONLY AND MAY CONTAIN TECHNICAL INACCURACIES OR OTHER ERRORS.
4 TERM AND TERMINATION
4.1 Subscription Term Renewal. The Subscription Term for each Service will automatically renew for a subsequent Subscription Term of equal length, unless (a) either Party elects not to renew by giving the other Party at least sixty (60) days prior written notice, or (b) this Agreement is terminated by either Party as provided in Section 4.2 or as otherwise provided in this Agreement.
4.2 Termination. Either Party may terminate this Agreement, immediately upon notice to the other Party, if the other Party breaches a material obligation under this Agreement and fails to cure such breach within thirty (30) days from the date the breaching Party receives a notice of the breach with a demand for cure from the non-breaching Party. The Parties agree that Customer’s material breach of this Agreement includes but is not limited to Customer’s use of the Kentik Technology outside the Permitted Use or otherwise contrary to Section 2.
4.3 Effect of Termination. Upon any expiration of the Subscription Term or any termination of this Agreement, Customer’s license or right to use or access the applicable Service and Kentik Technology (or all Services and Kentik Technology in the event of termination of this Agreement) immediately ceases, and Customer will return to Kentik or destroy all copies of the Kentik Technology in Customer’s possession or under Customer’s control. Termination is not an exclusive remedy and the exercise by either Party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
4.4 Survival. Section 1 (Definitions), 2.3 (Restrictions), 2.4 (Proprietary Rights Notices), 2.5 (Ownership of Kentik Technology), 2.6 (Ownership of Customer Data), 2.7 (Third Party Code), 3.5 (Warranty Disclaimers), 4 (Term and Termination), 5 (Confidential Information), 6 (Indemnification), 7 (Limitations of Liability) and 8 (General) will survive any termination or expiration of this Agreement.
5 CONFIDENTIAL INFORMATION
5.1 Obligations. Other than in the performance of this Agreement, the receiving Party will not use or disclose any Confidential Information of the disclosing Party which is obtained from the disclosing Party or otherwise prepared or discovered by the receiving Party, either in the performance of this Agreement (including, where Customer is the disclosing Party, through access to Customer Systems, or while on Customer premises, and where Kentik is the disclosing Party, through access to the Services or other Kentik Technology). The receiving Party will protect the confidentiality of the Confidential Information of the disclosing Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind but in no event less than reasonable care. The receiving Party is responsible for ensuring compliance with these terms by all persons and entities that obtain access to the disclosing Party’s Confidential Information, through or on behalf of the receiving Party. Each Party represents and warrants to the other Party that each such Party’s employee, agent, or subcontractor who performs work under this Agreement has been informed of the obligations contained herein and has agreed to be bound by them.
5.2 Exceptions. The provisions of this Section 5 relating to use and disclosure will not apply to any information that: (i) is rightfully known to the receiving Party prior to disclosure hereunder; (ii) is rightfully obtained by the receiving Party from any third party without restrictions on disclosure; (iii) is or becomes available to the public without restrictions; or (iv) is disclosed by the receiving Party with the prior written approval of the disclosing Party. If the receiving Party is required by law to disclose any Confidential Information, then, prior to any such disclosure, the receiving Party will provide the disclosing Party with reasonable prior notice and will obtain, or provide the disclosing Party with an opportunity to obtain, a protective order or confidential treatment of the Confidential Information.
5.3 Return of Confidential Information. Within ten (10) days of any termination of this Agreement, each Party will promptly return or destroy all copies (in whatever form, whether full or partial) of all of the other Party’s Confidential Information which is in its possession or under its control, and, upon request, provide written confirmation to the other Party that all copies of Confidential Information have been returned to the other Party or have been destroyed.
6.1 Indemnification by Kentik. Kentik will defend Customer (including its directors, officers, employees and agents) from and against any claims, demands or proceedings (“Claims”) brought against Customer to the extent alleging that the Service or any Kentik Technology provided by Kentik infringes any third-party Intellectual Property Right, and Kentik will pay the losses, costs, expenses, damages or other liabilities of any nature (including reasonable attorneys’ fees and any of the foregoing related thereto) (“Damages”) finally awarded with respect to, or agreed to by Kentik in settlement of, any such Claims; provided that the foregoing obligations exclude Claims and Damages to the extent relating to: (i) modifications made by Kentik to the Service or other Kentik Technology in accordance with written specifications provided by Customer where the Service or other Kentik Technology would not be infringing without such modifications; (ii) any modifications by Customer to the Service or other Kentik Technology; (iii) use by Customer of the Service or other Kentik Technology outside the Permitted Use or otherwise in a manner not permitted by this Agreement, (iv) the combination by Customer of the Service or other Kentik Technology with other software or hardware not provided by Kentik, where the combination causes the infringement and not the deliverable, Service or other materials standing alone, (v) any Customer Data, or (vi) third party code.
6.2 Additional Options. If the Service becomes, or in Kentik’s opinion is likely to become, the subject of a Claim as provided in Section 6.1, Kentik may, at its option and sole discretion, (i) obtain for Customer the right to continue to use the Services and Kentik Technology as provided in this Agreement; (ii) replace the affected Service or Kentik Technology with other products or services that provide similar functionality; or (iii) if Kentik determines that neither of the foregoing options are reasonably available, Kentik may cease providing the applicable Services and require that Customer cease use of the Services and Kentik Technology. In that event, and provided that Customer returns or destroys (and certify to such destruction of) all copies of the affected Services and other related Kentik Technology in Customer’s possession or control, if any.
6.3 Indemnification by Customer. Customer will defend Kentik (including its directors, officers, employees and agents) from and against any Claims by a third party (a) that the Customer Data furnished to Kentik by Customer and employed by Kentik in the course of performing the Service as authorized hereunder infringes, misappropriates or violates such third party’s Intellectual Property Rights or (b) arising from Customer’s use of the Services or Kentik Technology in breach of this Agreement, and Customer will pay the Damages finally awarded with respect to, or agreed to by Customer in settlement of, any such Claims; provided that the foregoing obligations exclude Claims and Damages to the extent relating to unauthorized modifications to or unauthorized use by Kentik of Customer Data.
6.4 Indemnification Procedures. If a Party (“Indemnified Party”) seeks indemnification under this Agreement, the Indemnified Party will: (i) give prompt notice to the other party (“Indemnitor”) concerning the existence of the Claim; (ii) grant authority to Indemnitor to defend or settle any related action or claim; and, (iii) provide, at Indemnitor’s expense, such information, cooperation and assistance to Indemnitor as may be reasonably necessary for Indemnitor to defend or settle the claim or action. An Indemnified Party’s failure to give prompt notice will not constitute a waiver of the Indemnified Party’s right to indemnification and will affect Indemnitor’s indemnification obligations only to the extent that Indemnitor’s rights are prejudiced by such failure or delay. An Indemnified Party may participate, at its own expense, in any defense and settlement through counsel of its choice but will not settle or compromise the Claim without the Indemnitor’s prior written consent. The Indemnitor will not enter into any settlement agreement on terms that would diminish the rights provided to the Indemnified Party or increase the obligations assumed by the Indemnified Party under this Agreement, without the prior written consent of the Indemnified Party.
6.5 Exclusive Remedies. Notwithstanding anything in this agreement to the contrary, this Section 6 sets forth each Party’s and their respective suppliers’ sole liability and the other Party’s sole and exclusive remedy with respect to any claim of infringement of third party Intellectual Property Rights.
7. LIABILITY LIMITATION
7.1 Consequential Damages Waiver. EXCEPT WITH RESPECT TO A PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS IN SECTION 2.3 (RESTRICTIONS) OR SECTION 5 (CONFIDENTIAL INFORMATION), OR ITS LIABILITY PURSUANT TO SECTION 6 (INDEMNIFICATION), NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Liability Limitation. EXCEPT WITH RESPECT TO A PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS IN SECTION 2.3 (RESTRICTIONS) OR SECTION 5 (CONFIDENTIAL INFORMATION) OR ITS LIABILITY PURSUANT TO SECTION 6 (INDEMNIFICATION), in no event will either party’s total, cumulative liability for any loss, cost, claim, legal action or damages of any kind arising out of or related to this Agreement (whether in contract, tort, strict liability or any other theory) exceed the amount of fees actually paid by Customer FOR THE SERVICES during the twelve (12) months prior to the first event giving rise to such claim or damages.
8 GENERAL PROVISIONS
8.1 Independent Contractor. The Parties are independent contractors, and no other relationship is intended by this Agreement.
8.2 Assignment. Neither Party may assign or delegate this Agreement or any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided that either Party may, with notice to the other Party, assign this Agreement and its rights and obligations under this Agreement to (i) such Party’s successor pursuant to a merger, reorganization, consolidation or sale, or (ii) an entity that acquires all or a substantial portion of those of such Party’s assets or business to which the Services relate. In addition, Kentik may delegate its obligations pursuant to this Agreement to its subcontractors but remains responsible for performance of such obligations. Any attempted assignment or delegation in contravention of this Section will be null and void, and of no force or effect. This Agreement is binding upon, and is for the benefit of, the legal successors and permitted assigns of the Parties.
8.3 Notices. Notices concerning this Agreement must be in writing and given to the representative who signed this Agreement on behalf of the intended recipient. Notices are deemed given: (i) when actually received by such representative for the intended recipient, or (ii) when delivered to the address set forth for such representative(s) on the cover page of this Agreement; provided the notice is sent to such representative(s) by certified or registered mail (return receipt requested) or commercial express courier (with tracking capabilities), or by e-mail (followed by confirming copy using another method for notice above). Either Party may change its address(es) or representative(s) for receiving notices upon notice to the other Party.
8.4 Waiver. Waiver of any provision of this Agreement must be in writing signed by an authorized representative of the waiving Party. Waiver by either Party of any default will not constitute a waiver of any other or subsequent default.
8.5 Force Majeure. A Party will be excused from a delay in performing, or a failure to perform, its obligations under the Agreement (other than payment obligations) to the extent such delay or failure is caused by the occurrence of any contingency beyond the reasonable control, and without any fault, of such Party. In such event, the performance times will be extended for a period of time equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for more than sixty (60) days, the Party not relying on the excusable delay may terminate the Agreement upon notice to the other Party. In order to avail itself of the relief provided in this Agreement, a Party must act with due diligence to remedy the cause of, or to mitigate or overcome, such delay or failure.
8.6 Remedies and Dispute Resolution.
8.6.1 Injunctive Relief. The Parties acknowledge that a Party’s breach of the confidentiality terms of this Agreement and/or violation of the other Party’s Intellectual Property Rights may cause irreparable harm for which the injured Party will not have an adequate remedy available at law. The injured Party may seek to obtain injunctive or other equitable relief to prevent or curtail any such breach, threatened or actual, without posting bond or other security and without prejudice to such other rights as may be available under this Agreement or applicable law. Unless otherwise expressly provided all remedies are cumulative.
8.6.2 Dispute Resolution. Except as provided in 8.6.1 above with respect to matters requiring injunctive or other equitable relief, the Parties will refer any disputed matter between the Parties (“Dispute”) to their respective senior level managers, who will seek to resolve such Dispute within ten (10) days of notice by one Party to the other of the Dispute. If the Parties are unable to resolve the Dispute as provided, or pursuant to an extended time period as agreed by the Parties, the Parties agree that the exclusive means of initiating adversarial proceedings to resolve the Dispute, will be arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and each Party hereby consents to any such dispute being so resolved. Each of the Parties will bear all the fees and costs incurred by it during the course of the arbitration, and, at the conclusion of the arbitration, the non-prevailing Party will reimburse the prevailing Party for such costs.
8.7 Interpretation; Severability. Each Party acknowledges and agrees that any interpretation of the Agreement will not be construed against a Party by virtue of its having drafted the provisions hereunder. If a court of competent jurisdiction declares any provision of the Agreement to be invalid, the Parties intend that such provision be amended and construed in a manner designed to effectuate the purposes of the provision to the fullest extent permitted by law. If such provision cannot be so amended and construed, it will be severed, and the remaining provisions remain unimpaired and in full force and effect to the fullest extent permitted by law.
8.8 Choice of Law; Forum. This Agreement will be deemed to have been made in, and will be construed pursuant to the laws of, the State of California and the United States without regard to conflicts of laws provisions thereof. Judgment on any award rendered in any arbitration may be entered in any court having jurisdiction. Each Party irrevocably submits to the jurisdiction and venue of the state and federal courts located in San Francisco, California.
PRODUCT ATTACHMENT: Standard SaaS
1 SCOPE AND DEFINITIONS
1.1 Scope. This Product Attachment sets forth the terms and conditions that govern Customer’s access to and use of Kentik’s Standard SaaS Service and is part of the Master Agreement between Kentik and Customer.
1.2 Definitions. Capitalized terms not specifically defined in this Product Attachment have the meanings given in other parts of the Agreement. In addition, the following terms have the following meanings:
1.2.1 “Site” means Kentik’s website currently located at www.kentik.com site and/or any related sites.
1.2.2 “Standard SaaS Service” means Kentik’s provision of remote access and use by Customer of the applicable Kentik Technology for the Permitted Use.
2 PROVISION OF SERVICE
2.1 Provision of Service. Subject to the terms and conditions of this Agreement, including but not limited to Customer’s payment of all fees, Kentik will provide to Customer, and Customer may access and use, the Standard SaaS Service during the Subscription Term. To the extent required to permit Customer’s use of Kentik Properties, and subject to the terms and conditions of this Agreement, Kentik hereby grants to Customer a non-exclusive, worldwide right to access and use the Kentik Properties during the applicable Subscription Term of this Agreement through the Hosting Environment for the Permitted Use.
2.2 Access to Kentik Properties. Throughout the Term of this Agreement, Kentik will use commercially reasonable efforts to host the Kentik Properties on its servers within the Hosting Environment to make the Service available in accordance with the Kentik’s “Service Standards” described at https://www.kentik.com/servicestandards/, which is subject to modification by Kentik from time to time upon sixty (60) days prior notice to Customer.
2.3 Customer Obligations. Customer, and its users, shall maintain in confidence any user ID and/or passwords used to access and use the Services. Customer will be fully responsible for all use of the Services and Kentik Technology under Customer’s account. Customer will immediately notify Kentik of any unauthorized disclosure or loss of its password or other unauthorized use of the Services through Customer’s account.
3 TERMINATION. The following provisions are in addition to the termination provisions in the Master Terms of this Agreement:
3.1 Termination by Kentik for Cause. Kentik may terminate this Agreement, including this Product Attachment, immediately, in whole or in part, without further obligation to Customer in the event of: (i) any material breach by Customer of this Product Attachment which is not cured within 30 days of written notice (or in the case of any breach of Section 2.3 (Restrictions) of the Master Terms, if not cured within 7 days of written notice); or (ii) use of the Service by Customer (A) in breach of this Agreement, presents a material security risk or will interfere materially with the proper continued operation of the Hosted Environment or related Kentik Technology, or (B) is subject to an order from a court or governmental entity stating that such use generally or for certain activities must stop.
3.2 Termination by Customer for Cause. Customer may terminate this Agreement, including (i) if the Service as provided by Kentik (A) presents a material security risk or will interfere materially with the proper continued operation of a data center or related services or (B) is subject to an order from a court or governmental entity stating that such use generally or for certain activities must stop.
3.3 Effect of Termination. Subject to Customer’s compliance with Section 5.3 (Effect of Termination; Survival) of the Master Agreement, and unless Kentik terminates this Agreement for cause pursuant to this Agreement (including the Master Terms), Kentik will, within 30 days of termination, provide in a mutually agreeable form and format, or give limited access to Customer to download, any Customer Data that Kentik is hosting as part of the Services. After such delivery or time period for download, Kentik will no longer have any obligation to provide or make available any such Customer Data to Customer and may delete any and all such Customer Data from its Hosted Environment.
4 ACCESS TO CUSTOMER SYSTEMS AND DATA SECURITY
4.1 Use of Service and Access to Customer Systems. As described in the Service Standards, Kentik maintains its own infrastructure and controlled environment in connection with the operation of the Service. Customer can elect to forward Customer Data in the manner selected by Customer, subject to Kentik’s reasonable approval. For heightened security, Kentik recommends encrypted transmission as described at https://www.kentik.com/KB/KB_Articles/Bd04.htm. Access, if any, to any Customer System is granted solely to allow Kentik to provide the Service and is limited to those specific Customer Systems during such time periods as agreed by Customer. Kentik will use security measures designed to comply with the above obligations and to avoid impairment to the integrity and availability of Customer Systems.
4.2 Safeguards. Kentik will implement and maintain administrative, physical and technical safeguards that are designed to prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of any Customer Data as may be held or accessed by Kentik. Such safeguards will include, without limitation, an information security program that meets industry practice to safeguard Customer Data. Such information security program will include, without limitation, (i) physical security of all premises in which Customer Data will be processed or stored; (ii) reasonable precautions taken with respect to the employment of and access given to Kentik personnel, including background checks and security clearances that assign specific access privileges to individuals; and (iii) network security program (which includes, without limitation, encryption of sensitive or private data).
4.3 Notification of Security Breach. Kentik will notify Customer immediately following its discovery of any suspected breach or compromise of the security, confidentiality, or integrity of any Customer Data hosted by Kentik. Written notification provided pursuant to this paragraph will include a brief summary of the available facts, the status of Kentik’s investigation and, if known and applicable, the potential number of Persons (defined below) affected by release of data relating to such Person (“Affected Persons”). “Person” refers to an identifiable user, whether entity or natural person, [as represented by a unique IP address]. If applicable, upon written request from Customer, Kentik agrees to notify the Affected Persons regarding any security breach in a form approved in writing by Customer. Such notices will be delivered within a reasonable time at Customer’s direction. All Kentik costs associated with any such security breach will be the sole responsibility of Kentik. Kentik agrees that, unless required under applicable law or to the extent such security breach affects any other customers, it will not communicate with any third party, including, but not limited to, the media, vendors, consumers and Affected Persons regarding any such security breach without the express written consent and direction of Customer.