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confidential.
(b) Confidential Information shall not include
information which (i) Receiving Party can demonstrate
was rightfully in its possession, without confidentiality
restrictions, before receipt, (ii) is or subsequently
becomes publicly available without Receiving Party's
breach of any obligation owed the disclosing party, (iii)
KMS lighthouse End User License Agreement is disclosed to Receiving Party without confidentiality
(“EULA”) restrictions by a third party who had the right to
disclose such information, or (iv) Receiving Party can
This KMS lighthouse End User and License demonstrate was independently developed without
Agreement (“Agreement”) is entered into between reliance on any Confidential Information of the
KMS Lighthouse (“KMS”) and the party identified in the Disclosing Party.
signature block below (“Customer”) as of the last date (c) The parties hereby agree that: (i) Receiving
signed below (“Effective Date”). All headings are for Party may use Confidential Information solely for the
ease of reference and are for convenience only, and purposes of this Agreement; (ii) Receiving Party shall
do not affect interpretation. instruct and require all of its employees, agents, and
contractors who have access to the Confidential
Information of the disclosing party to maintain the
1. GRANT OF LICENSE. confidentiality of the Confidential Information; (iii)
1.1 License Grant. Subject to the terms of this Receiving Party shall exercise at least the same
Agreement, KMS grants to Customer a nonexclusive, degree of care, but not less than reasonable care, to
nontransferable license to use the products described safeguard the confidentiality of the Confidential
on a Schedule to this Agreement (the "Products") for Information as Receiving Party would exercise to
Customer’s internal use during the term of the License safeguard the confidentiality of Receiving Party's own
and at the Authorized Location described on the confidential property; (iv) Receiving Party shall not
Schedule and any subsequent Schedules entered into disclose the Confidential Information, or any part or
by the parties. This license and the terms of license parts thereof except on a "need to know" basis to
will also extend to Derivative Works, Upgrades, and those of its employees, agents, and contractors who
Error corrections, which KMS may provide to are bound to confidentiality obligations at least as
Customer as part of the Annual Subscription Services protective of the Confidential Information as those set
described in Section 5. forth herein; and (e) Receiving Party; and (v)
Receiving Party may disclose the disclosing party's
1.2 License Conditions.
Confidential Information to the extent required by a
(a) Ownership. KMS retains all rights, title, valid order by a court or other governmental body or
interest and any other intellectual property rights in by applicable law, provided, however, that Receiving
and to the Products, the Derivative Works, the Party will use all reasonable efforts to notify Disclosing
Documentation and the KMS Information. Party of the obligation to make such disclosure in
(c) Application Service Provider. Customer advance of the disclosure so that Disclosing Party will
may not use the Products on an application service have a reasonable opportunity to object to such
provider, in connection with a service bureau or for the disclosure. Receiving Party agrees to undertake
benefit of any third party. whatever action necessary to remedy any such breach
(d) Reverse Engineering. Customer may not of Receiving Party's confidentiality obligations set forth
attempt to decompile, disassemble or reverse herein or any other unauthorized disclosure or use of
engineer any Product. the Confidential Information by Receiving Party, its
(e) Acceptance. Each Product will be deemed employees, its agents, or contractors.
accepted by Customer upon receiving the 1.4 Reports. Upon KMS’s reasonable request,
authorization to access the environment. Customer will provide KMS with documentation
1.3 Confidentiality. concerning Customer’s use, reproduction, and
(a) For purposes of this Agreement, (1) the term sublicensing of the Products. Customer will provide
"Receiving Party" shall mean KMS with respect to KMS with reasonable access to its records during
Confidential Information (as defined below) supplied Customer’s normal business hours to verify the
hereunder by Customer, to KMS and Customer with information contained in these reports and Customer’s
respect to Confidential Information supplied compliance with this Agreement.
hereunder by KMS to Customer and (2) the term 2. WARRANTY AND DISCLAIMER.
"Disclosing Party" shall mean KMS with respect to
Confidential Information supplied to Customer by 2.1 Warranty. KMS warrants that the Product will
KMS, and Customer with respect to Confidential substantially conform to its Documentation. Customer,
Information supplied to KMS by Customer. however, acknowledges that the Products are of such
"Confidential Information" means the Software (both complexity that they may contain inherent defects and
object and source code), the Documentation and all Errors and the mere existence thereof shall not
related technical and financial information (including constitute a breach of this Agreement.
the terms of this Agreement) and any information, 2.2 Disclaimer. EXCEPT AS PROVIDED
technical data or know-how, including, without ABOVE, KMS EXPRESSLY DISCLAIMS ANY AND
limitation, that which relates to computer software ALL REPRESENTATIONS, WARRANTIES,
programs or documentation, specifications, source GUARANTEES, CONDITIONS AND
code, object code, research, inventions, processes, UNDERTAKINGS WITH RESPECT TO THE
designs, drawings, engineering, products, services, PRODUCTS AND DOCUMENTATION, KMS
customers, markets or finances of the Disclosing Party INFORMATION AND THEIR PERFORMANCE,
which (i) has been marked as confidential or INCLUDING, WITHOUT LIMITATION, ALL IMPLIED
proprietary, (ii) is identified as confidential at the time WARRANTIES OF MERCHANTABILITY OR
of disclosure either orally or in writing, or (iii) which due FITNESS FOR A PARTICULAR PURPOSE.
to its character and nature, a reasonable person under
like circumstances would understand to be
3. LIMITATION OF LIABILITY. 5.3 KMS will not have any liability if any allegation
3.1 NOTWITHSTANDING ANY OTHER CLAUSE of infringement is based upon the interconnection,
IN THIS AGREEMENT, IN NO EVENT WILL KMS modification or use of the Product in combination with
BELIABLE FOR ANY SPECIAL, INDIRECT, other hardware, software or other devices not
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL furnished or specified in writing by KMS, or upon any
DAMAGES (INCLUDING, WITHOUT LIMITATION, use of the Product for which the Product was not
ANY FAILURE TO REALIZE SAVINGS OR OTHER designed, or if the infringement arises out of
BENEFITS; ANY LOSS OF USE; OR ANY CLAIMS compliance with Customer's specifications or designs,
MADE BY OR ANY PAYMENTS MADE TO ANY or out of modifications made to the Product or
THIRD PERSON), ANY LOSS OF REVENUE OR Documentation.
PROFITS, ANY LOSS AND/OR DAMAGE ARISING
5.4 THE FOREGOING STATES KMS' ENTIRE
FROM OR IN CONNECTION WITH A VIRUS, OR LIABILITY WITH RESPECT TO INFRINGEMENT OF
ANY LOSS OF DATA AND/OR DAMAGE ARISING AN INTELLECTUAL PROPERTY BY THE PRODUCT
THERE FROM OR RELATING THERETO, IN EACH
AND DOCUMENTATION.
CASE ARISING FROM OR IN CONNECTION WITH
THIS AGREEMENT OR THE USE OR 6. TERM AND TERMINATION.
PERFORMANCE OF ANY PRODUCT WHETHER IN
6.1 Term. This Agreement commences on the
AN ACTION BASED ON CONTRACT, TORT OR ANY
Effective Date and continues for the time period
OTHER LEGAL THEORY, WHETHER OR NOT KMS
specified in the applicable Order. The License for a
HAS BEEN NOTIFIED OF THE POSSIBILITY
Product commences on the Effective Date shown on
THEREOF.
the applicable Schedule or purchase order accepted
by KMS and terminates on the Termination Date
3.2 NOTWITHSTANDING ANY OTHER CLAUSE
shown on the applicable Schedule.
IN THIS AGREEMENT, IN NO EVENT WILL KMS'
TOTAL AGGREGATE LIABILITY FOR ANY 6.2 Termination for Breach. Either party may
DAMAGES ARISING FROM OR IN CONNECTION terminate this Agreement or any License to a Product
WITH THIS AGREEMENT OR THE USE OR by giving written notice to the other, if the other party
PERFORMANCE OF ANY PRODUCT, WHETHER IN fails to remedy any breach of this Agreement within
ACTIONS BASED ON CONTRACT, TORT OR ANY fourteen days after its receipt of notice of breach and
OTHER LEGAL THEORY, AND WHETHER OR NOT intent to terminate.
KMS HAS BEEN NOTIFIED OF THE POSSIBILITY 6.3 Effect of Termination. On termination of this
THEREOF, EXCEED THE PRICE PAID BY THE Agreement or any License to any Product, the
CUSTOMER FOR THE PRODUCT IN THE TWELVE following will occur:
(12) MONTHS IMMEDIATELY PRECEDING THE
EVENT THAT GAVE RISE TO THE CLAIM. (a) All rights granted to the affected Product(s),
and all related Documentation and KMS Information
4. ANNUAL SUBSCRIPTION. Subscriptions will immediately terminate and Customer will lose the
services will automatically renew for one-year periods, right to access the Product.
and Customer will be invoiced for the corresponding (b) Customer must either return to KMS the
annual subscription fees, unless KMS is notified in affected Product(s), and all related Documentation,
writing by Customer no later than sixty days prior to Materials, Derivative Works, and KMS Information, or
the renewal date that Customer no longer wishes to destroy them and certify such destruction to KMS.
receive the services for the Product and signs the (c) All rights and obligations under Sections 1.3,
KMS Standard Withdrawal from the Using the System 2, 3, 4, 6, and 8.1 and other provisions hereunder
Document. which by their nature should survive termination of this
5. INDEMNITIES. Agreement, will survive termination of this Agreement.
(d) Except as provided in Section 6.3, termination
5.1 Indemnification by KMS. KMS agrees to
will not affect any claim, liability or right of Customer or
defend, indemnify and hold Customer harmless from
KMS arising prior to the termination.
and against damages assessed against Customer, by
a court of competent jurisdiction, in favor of any third 7. GENERAL.
party as a result of such party's claim that any part of
the Product or Documentation constitutes an 7.1 Restricted Rights Legend - U.S.
infringement of a United States patent, trademark or Government. The Products acquired by the United
copyright owned by such party and enforceable in the States of America, its agencies and/or
Customer's country, provided: (i) Customer notifies instrumentalities are and will be provided with
KMS promptly in writing of any such claim and gives RESTRICTED RIGHTS FOR SOFTWARE
full and complete authority, information, and DEVELOPED AT PRIVATE EXPENSE. Use,
assistance to KMS in the defense of such claim; (ii) duplication or disclosure by the U.S. government is
Customer does not make any admissions or otherwise subject to the restrictions set forth in subparagraph
respond to any such claim without KMS's written (c)(1)(ii) of the Rights in Technical Data and Computer
consent; and (iii) KMS will have sole control of the Software clause at 48 C.F.R. 252.227 or DFAR
defense of any such claim and of all negotiations for 52.227, as applicable.
its settlement or compromise. 7.2 Export. Customer agrees not to transfer,
5.2 If an allegation of infringement of any intellectual directly or indirectly, any product, technical data or
property rights with respect to the Products or software furnished hereunder or the direct product of
Documentation, or any part thereof is made, or in such technical data or software in violation of the
KMS's opinion is likely to be made, KMS may at its export laws of the United States or of any other
own option and expense: (1) procure for Customer the country.
right to continue to use such part, or (2) modify the part 7.3 Assignment. Customer may not assign this
so it becomes non-infringing, or (3) remove the part Agreement or otherwise transfer the use of any
and refund the price paid by Customer for such part Products without the prior written consent of KMS.
amortized on a straight line basis over five (5) years
7.4 Independent Parties. Neither Customer nor
from the date of the applicable purchase order.
KMS is a legal representative or agent of the other, or
is legally a partner of the other.
7.5 No Hiring: Customer and Customer’s 8.7 "Products" means the KMS products
Affiliates may not hire, or directly or indirectly solicit or identified on the attached Schedule, any additional
employ, any employee or contractor of KMS who is or Schedules entered into by the parties or in purchase
was involved in the development, use or provision of orders accepted by KMS in writing during the term of
Services to Customer, without the prior written this Agreement, including all associated
consent of KMS, for a period of: (i) two (2) years after Documentation.
the termination of this Agreement, or (ii) during the 8.8 “Upgrade” means a Release, Version, or
time the employee is employed by KMS and for a
Maintenance Fix of the Product.
period of one (1) year thereafter, whichever is later.
8.9 “Version” means generally commercially
7.6 Entirety. This Agreement, Schedule(s) and released code corrections, patches, and minor version
Appendices represent the entire agreement of the releases of the same Product as designated by a
parties regarding the subject matter hereof,
change in the number to the right of the decimal in the
superseding all other agreements. In the event that a version number (e.g. x.4, x.5, x.6).
Schedule is in conflict with the terms of this
Agreement, the Schedule will overrule. Delivery of an
executed counterpart of this Agreement by facsimile KMS LIGHTHOUSE
of any other reliable means, shall be deemed to be as 9 Shimshon Street
effective for all purposes as delivery of the manually Petach Tikva,
executed counterpart. This Agreement may not be 4952707
amended except in writing signed by both parties. No ISRAEL
waiver of rights by either party may be implied from Attn: Legal Department
any actions or failures to enforce rights under this
Agreement. Signature: _________________________________
7.7 Severability. Each of the provisions of this Name: ____________________________________
Agreement is severable from all of the other
provisions. The invalidity or unenforceability of any Title: _____________________________________
provision will not affect or impair the remaining
provisions, which will continue in full force and effect. Date: _____________________________________
7.8 Governing Law and Jurisdiction. This
Agreement will be governed by the laws of New York,
USA without regard to its choice of law provisions. CUSTOMER
Any dispute arising under this Agreement must be
brought exclusively in a court of competent jurisdiction
located in New York, New York, USA and each party Name: ___________________________________
irrevocably consents to such personal jurisdiction in
such forum and waives all objections to this venue. Address: _________________________________
7.9 Notice. All notices must be in writing to the
_________________________________________
address in this Agreement and will be effective on the
date received. _________________________________________
8. DEFINITIONS.
Attn: _____________________________________
8.1 “Affiliate” means an entity that a party,
directly or indirectly, controls, an entity that controls a
party or an entity that is under common control with a
party. For purposes of this provision, control means Signature: _________________________________
ownership of at least fifty percent (50%) of the
outstanding voting shares of the entity. Name: ____________________________________
8.2 “Derivative Work" means any work based on Title: _____________________________________
or incorporating all or any portion of a Product,
including mechanical or electronic reproduction, Date: _____________________________________
translation, adaptation, change of media or other form.
8.3 "Documentation" means the user manuals,
implementation manuals, and system administration
manuals that accompany a Product, as well as
Upgrades of such manuals, in electronic, paper
formats or any other form.
8.4 “Error” means a failure of the Product to
conform in all material respects with the application
Documentation.
8.5 "KMS Information" means all information
furnished by KMS in oral, written or machine-readable
form, disclosed as a result of this Agreement, and that
should reasonably have been understood by the
receiving party, because of legends or other markings,
the circumstances of disclosure or the nature of the
information itself, to be proprietary and confidential to
the disclosing party, an affiliate of it or to a third party.
8.6 “Maintenance Fix” means a later version of
the Product, designated by KMS by means of a
change in the digit to the right of the Version number
(e.g. x.x.1, x.x.2).