Updated on: August 14, 2023
Affiliated Entities means the service providers, licensors, licensees, vendors, and independent contractors of Knaq. Customer Data shall mean the data collected, used, processed, stored, or generated as the result of Customer’s use of the Knaq Monitoring System. Customer Data is and shall remain the sole and exclusive property of Customer. Equipment means the equipment ordered from or provided by Knaq as part of the Knaq Monitoring System as set forth in the Service Agreement. Service Technician means Knaq personnel or it’s independent contractors or partners who have been trained to install and service Knaq Equipment and have access to Knaq proprietary applications. Software means the object code version of any software to which Customer is provided access as part of the Subscription Services, including any Updates or new versions. Start Date means the first day of the month in which Knaq begins billing Customer for the Knaq Monitoring System and is set forth in the Service Agreement. Subscription Services means the proprietary Software which is hosted by Knaq and made available to Customer via the Internet as specified in the Service Agreement. Knaq Monitoring System means the Subscription Services and the Equipment. Updates means any patch, bug fix, release, version, modification, or successor to the Subscription Services.
If Customer purchased Subscription Services, then Knaq hereby grants to Customer a limited, nonexclusive, revocable, non-sublicensable, non-assignable, royalty-free, worldwide right to access and use the Subscription Services solely for its internal business operations subject to these General Terms during the Term. Customer acknowledges that these General Terms are a services agreement and Knaq will not be delivering copies of Software to Customer as part of the services provided. Knaq shall provide Updates to the Subscription Services to ensure: (a) the functionality of the Subscription Services is available to Authorized Users (as defined below); and (b) the functionality of the Subscription Services in accordance with the description, representations and warranties set forth herein. The Subscription Services includes unlimited storage for Customer’s Data used in connection with the Subscription Services. Although Knaq and its Affiliated Entities may offer other products and services that complement or work in conjunction with the Subscription Services, no rights are granted to such products and services unless expressly set forth herein.
Subject to these General Terms, Knaq grants Customer a nonexclusive, non-assignable, royalty-free, and worldwide right for 50 authorized users (each, an “Authorized User”) to access and use the Subscription Services. Customer shall be solely responsible for the acts and omissions of the Authorized Users when using the Subscription Services and Knaq shall not be liable for any loss of data or functionality, and in Customer’s network or systems, caused directly or indirectly by an Authorized User. Customer shall inform each Authorized User that such Authorized User is subject to these General Terms and is responsible for ensuring that its employees, independent contractors, and Authorized Users comply with these General Terms. Knaq shall have no obligation to provide support, other services, or other remedies to any Authorized User except as set forth herein. Although Authorized Users will have access to the Subscription Services, only Customer is entitled to any of the rights, remedies or benefits under these General Terms. Customer is likewise subject to, and Knaq may enforce against Customer, all of the covenants, obligations, restrictions, limitations, acknowledgements, consents, representations, warranties, waivers and releases included in these General Terms. Customer may delegate certain rights and administrative responsibilities to one or more of its employees or agents, but Customer remains responsible for all activity occurring hereunder.
Customer will create accounts with an authorized Customer email address and Authorized User defined password (“Log-In Information”) which enable each Authorized User to access and use the Subscription Services. Log-In Information may be used only by the assigned Authorized User and may not be transferred or shared without Knaq’s consent. Customer and each Authorized User are responsible for maintaining the confidentiality of the Log-In Information and are responsible for all activities occurring under such Log-In Information. Customer shall take reasonable steps to prevent unauthorized access to the Subscription Services, including without limitation by protecting its Log-In Information and Customer shall immediately notify Knaq of any unauthorized use of an Authorized User’s Log-In Information or any other breach of security with respect to Log-In Information.
The method and means of providing the Subscription Services shall be under the control, management, and supervision of Knaq and its Affiliated Entities, giving due consideration to the requests of Customer. Knaq, or its Affiliated Entities, will host and maintain the Subscription Services, subject to Section 4(c) and Section 6 herein. Knaq, and its Affiliated Entities, will remotely review and monitor all use of the Subscription Services to provide the Subscription Services to Customer and to ensure compliance with these General Terms. Knaq, and its Affiliated Entities, may use tools, scripts, software, metadata analysis and utilities (collectively, the “Tools”) to monitor and administer the Subscription Services and to help resolve Customer’s service requests. Information collected by the Tools may be used to assist in managing Knaq’s, and its Affiliated Entities’, product and service portfolio, to help Knaq, and its Affiliated Entities, address deficiencies in its product and service offerings, and for license and Subscription Services management.
Customer shall use the Subscription Services only for lawful purposes in connection with its business and in accordance with the instructions provided by Knaq and solely for Customer’s internal business purposes. In using the Subscription Services, Customer agrees not to engage, directly or indirectly, in any of the following prohibited actions: (a) use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” or other methods that access the Subscription Services in a manner that sends more messages to the servers than a human interaction can reasonably produce; (b) use any portion of the Subscription Services as a destination linked from any unsolicited bulk or unsolicited commercial messages; (c) attempt to interfere with or compromise the integrity or security of the Service or decipher transmissions to or from the servers running the Subscription Services or attempt to collect or harvest any personally identifiable information and account names from the Subscription Services; (d) intentionally upload viruses, worms, or other software agents through the Subscription Services; (e) conduct fraud, hide or attempt to hide Customer’s (or an Authorized User’s) identity; or (f) bypass the measures that Company may use, consistent with these General Terms Agreement, to restrict access to the Subscription Services.
Customer shall not, and shall not permit anyone to: (a) copy or republish the Software or the Subscription Services, (b) make the Subscription Services available to any person other than Authorized Users, (c) use or access the Subscription Services to provide service bureau, time-sharing or other computer hosting services to third parties, (d) modify or create derivative works based upon the Subscription Services, (e) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the Subscription Services or on the Equipment, (f) reverse engineer, decompile, or disassemble the Knaq Monitoring System, (g) access the Subscription Services in order to build a similar product or competitive product, (h) license, sell, rent, lease, transfer, sublicense, or grant any rights in or commercially exploit the Subscription Services in any form to any other party or attempt to do any of the foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except as expressly permitted herein; or (i) engage in or authorize any copying, reselling or distribution of the Subscription Services except as expressly permitted herein.
Knaq may upgrade, modify, replace, or reconfigure the Subscription Services at any time provided that any such revision shall not materially reduce the functionality of the Subscription Services. If any such revision, upgrade, modification, replacement, or reconfiguration materially reduces the functionality or availability of the Subscription Services, Customer may terminate these General Terms without cause within thirty (30) days of the effective date of such revision, upgrade, modification, replacement, or reconfiguration. Notwithstanding the above, upon twenty (20) days prior written notice, Knaq may withdraw a product, service, or Software from the market. If Knaq adds new functions or new features to the Subscription Services, such functionality or new features shall be available to Customer; provided that additional fees may be applicable for such increased functionality or new features. During the Term, the Knaq Services Network (as defined below) may undergo changes caused by either Knaq or Knaq’s Affiliated Entities. Such changes may require Customer to purchase new or supplemental hardware (e.g., Equipment) and/or software upgrades hereunder to continue receiving the Subscription Services. Any failure to purchase such new or supplemental hardware and/or software upgrades may limit Customer’s ability to continue receiving the Subscription Services and may constitute a material default under these General Terms.
If Customer did not purchase Subscription Services from Knaq as set forth in the Service Agreement, then this Section 2 is not applicable.
Equipment provided as part of the Knaq Monitoring System will be the sole property of Knaq or its service providers. Client will have no rights whatsoever in or to the Equipment other than the right to use during the Term as provided Section 2(a). At any time during the Term and at Knaq’s sole discretion, Knaq may, at no charge to Customer, replace or substitute any Equipment used by or for Customer with new or different Equipment of any brand, model or version, from any source or manufacturer, provided that such replacement or substitute equipment provides like features and functionality.
Authorized Users may request technical support regarding the Knaq Monitoring System via electronic mail at Support twenty-four (24) hours per day, seven (7) days per week. Knaq shall respond to such requests within twenty-four (24) hours. Knaq will deliver Updates to the Subscription Service at no additional charge. Knaq will use commercially reasonable efforts to keep the Subscription Services available via website access on a twenty-four (24) hours per day, seven (7) days per week basis, subject to occasional scheduled downtime for maintenance purposes during non-working hours and downtime for unforeseen maintenance and service upgrades for short periods of time. Customer shall provide access, information, and support as Knaq may reasonably require in the process of resolving any failure in the Subscription Services to function in accordance with the description, representations, and warranties set forth herein.
Knaq is not obligated to provide support to the extent such support is needed for support which was created in whole or in part by: - the acts, omissions, negligence or willful misconduct of Customer or Authorized Users, including any unauthorized modifications of the Subscription Services or its operating environment - any failure or defect of Customer’s, an Authorized User’s, or a third party’s equipment, Software, facilities, or third party applications - Customer’s or an Authorized User’s use of the Subscription Services other than in accordance with the Subscription Service’s documentation, or - a force majeure event as set forth in Section 15(c) below.
Knaq does not guarantee network availability between Customer and Knaq’s hosting servers, as such availability can involve numerous third parties and is beyond the control of Knaq. Knaq will provide reasonably expected support services and guidance in establishing internet connectivity, but Customer is ultimately responsibility for connectivity unless otherwise provided in the Service Agreement. Knaq will not be liable for any downtime in the Subscription Services caused in whole or part by a third party provider nor for any downtime that Customer experiences as a result of Customer or its Authorized Users’ own network connectivity issues. If Customer experiences a Subscription Services outage and is unable to access the Subscription Services, Customer must immediately contact Knaq support, providing any/all necessary information that may assist Knaq in determining the cause of the outage. Knaq’s provision of the Subscription Services hereunder utilizes third party network services, such as communications networks (e.g., Internet Service Providers, cellular carriers, GPS satellites). When using the Subscription Services, data is transmitted through, and Knaq configures and manufactures its Equipment and Software based upon, such networks (the “Knaq Software Network”). Knaq is not liable for any outages or breaks in coverage in the Knaq Services Network that cause the Subscription Services to be unavailable.
Knaq may provide the Subscription Services Training, Installation Services, Support Services, or Professional Services set forth below to Customer as provided in the Service Agreement or upon Customer’s written request (collectively, the “Services”). The fees and prices for such Services are set forth on the Service Agreement.
Knaq will provide initial Subscription Services training within 30 business days of the Start Date (“Subscription Services Training”).
Knaq or its Affiliated Entities will support installation if specified in the Service Agreement (collectively, the “Installation Services”). The method and means of planning, scheduling and performing the required installation shall be under the control, management, and supervision of Customer and the Customer’s service providers, giving due consideration to any requests from Knaq or its Affiliated Entities. Knaq or its Affiliated Entities will recommend a strategy to the Customer that balances work speed, management overhead and cost based on Customer preferences. Customer understands its equipment controllers may need to be modified for the Knaq Equipment installation. This includes, but is not limited to drilling an external hole, using bolts for Equipment fastening, and organizing Equipment wires within the controller cabinet. “Installation Training” includes training of Customer’s personnel on proper installation and activation procedures for the Equipment and coordinating with Customer’s personnel to ensure an efficient, high-quality installation of Equipment by Customer’s personnel. Installation Training may be conducted remotely or onsite and may be performed by Knaq or its Affiliated Entities.
Knaq will provide support services to repair, maintain, or service the Equipment as needed or requested by Customer. In general, Knaq will complete Customer’s requested action within four (4) business days of receiving the request from Customer via email at Support or via phone. In the case where the action cannot be completed within five (5) days, Knaq will work jointly to develop a suitable arrangement for executing the action. Customers may request expedited next day service by contacting Knaq Support before 3:00 pm ET with their request via email at Support or via phone. Based on installation location, volume of work, required schedule or any other consideration Knaq may decline to provide Support Services for specific requests or projects.
Customer shall provide commercially reasonable information and assistance to Knaq to enable Knaq to provide Services. Such information and assistance shall include, but not be limited to (i) a contact person with the qualifications necessary to assist in the deployment and ongoing use of the Subscription Services, Installation Services, and any Support Services provided to Customer. If any Knaq personnel performing Installation Services or Support Services (“Service Technician”) are unable to access or locate the Equipment needing such Support or Installation Services, such Service Technician will call the phone number indicated for the Customer contact when making the request for Support Services. If the Service Technician is unable to make contact with the Customer contact within 20 minutes, the Service Technician will vacate Customer’s premises and the requested service will not be performed.
Knaq personnel are available for special projects and consulting services. The terms and conditions of engagements will be defined separately.
Customer acknowledges that Knaq’s ability to deliver Services in the manner provided in these General Terms depends upon the accuracy and timeliness of the information provided by Customer. Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and services necessary, including to enable the Authorized Users to access and use the Subscription Services, including without limitation, all computer hardware and software, network system, communication service, wiring, communication lines and internet access. Customer acknowledges that Knaq and its Affiliated Entities are not responsible for Equipment installation, unless otherwise specified in the Service Agreement. Furthermore, Knaq and its Affiliated Entities bear no responsibility for the any maintenance, breakdown, equipment defect or product liability, personal injury, property damage or any other matter which is related to or arises out of an equipment dysfunction, accident, or other incident which causes damages, injuries, death or inconvenience to any person or entity whatsoever. Customer acknowledges that Knaq shall not be obligated to repair, maintain, service or otherwise attend to any equipment or the continued operation of any system other than the Knaq Monitoring System and Equipment. Such obligations rest entirely with the Customer and their service providers designated to provide such services.
Subject to the limited rights granted herein, Knaq, and as applicable its Affiliated Entities, shall own all right, title and interest, including all copyright, patent, trademark, trade secret rights, and other intellectual property rights therein, in (i) the Knaq Monitoring System, (ii) any deliverables provided by Knaq to Customer in connection with the Knaq Monitoring System, and (iii) any modifications, improvements, derivatives, Updates, upgrades, releases, and versions of the Knaq Monitoring System and such deliverables, and all copies, in any form, of all or any part thereof (“Knaq Property”), including, any feedback, suggestions made by Customer, or input provided by a Customer, Authorized User, or any person permitted access to the Knaq Property which are incorporated into subsequent versions of the Knaq Property.
Subject to the terms of these General Terms, Customer hereby grants to Knaq a limited, non-exclusive license to copy, collect, process, store, generate, and display the Customer Data to the extent necessary to provide the Subscription Services and to monitor and improve the performance of the Knaq Monitoring System.
Knaq shall use Aggregate Data to provide analytics, information, forecasts, extrapolations, and projections to Customer, its Affiliated Entities, and others. Knaq may use, reproduce, sell, publicize, or otherwise exploit such "Aggregate Data" in any way, in its sole discretion. "Aggregate Data" means and includes information gathered from Customer Data that is aggregated and anonymized to remove personally identifiable information.
Without limiting Knaq’s obligation of confidentiality as described herein, Knaq shall establish and maintain a data privacy and information security program that is designed to: (A) ensure the security and confidentiality of the Customer Data; (B) protect against any anticipated threats or hazards to the security or integrity of the Customer Data; (C) protect against unauthorized disclosure, access to, or use of the Customer Data; (D) ensure the proper disposal of Customer Data; and (E) ensure that all employees, agents, and subcontractors of Knaq, if any, comply with all of the foregoing. As a part of the Subscription Services, Knaq shall maintain a backup of Customer Data for an orderly and timely recovery of such data in case the Subscription Services are interrupted. In the event of any act, error or omission, negligence, misconduct, or breach by Knaq that comprises or is suspected to compromise the security, confidentiality, or integrity of Customer Data or the physical, technical, administrative, or organizational safeguards put in place by Knaq that relate to the protection of the security, confidentiality, or integrity of Customer Data, Knaq shall, as applicable: (A) notify Customer as soon as practicable; (B) cooperate with Customer in investigating the occurrence; and (C) perform or take any other actions required to comply with applicable law as a result of the occurrence.
Customer shall be responsible for and shall pay to Knaq the fees set forth in the Service Agreement during the Term. Any sum due to Knaq for the Knaq Monitoring System for which payment is not otherwise specified in the Service Agreement shall be due and payable upon Customer’s receipt of Knaq’s invoice. Unless otherwise set forth in these General Terms or the Service Agreement, all fees are non-refundable. Any terms and conditions set forth in any Customer purchase order shall be for convenience only and shall not be binding upon the parties. Fees are exclusive of any taxes, levies, or duties imposed by taxing authorities and Customer is responsible for payment of all such taxes, levies, or duties.
Knaq reserves the right to suspend access to or delivery of the Subscription Services and/or provision of any Equipment or Support Services if Customer fails to timely pay any amounts due to Knaq under these General Terms.
Users can opt in to receive SMS messages from the Knaq application. These messages are for equipment alerting providing the equipment location, name, alert condition, and relevant timestamps.
Users can unsubscribe from SMS alerts at any time by visiting their profile page at Account Settings and unchecking the "Text Message" icon. Alternatively, users can reply to an alert message with the word “STOP” to be automatically unsubscribed from future SMS alerts. After this "STOP" message is received, the user will receive an SMS confirmation message. Users can re-subscribe to alerts in the same account-settings page on the application.
If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at Support.
Carriers are not liable for delayed or undelivered messages.
As always, message and data rates may apply for any messages sent to you from us and to us from you. You will receive variable messages depending on equipment counts and alerting frequency, but generally less than 100 messages per month. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
If you have any questions regarding privacy, please read our privacy policy here: Privacy Policy.
The term of these General Terms shall begin on the Start Date and continue for the duration of the Term specified on the Service Agreement (the “Initial Term”). Following the Initial Term, these General Terms shall automatically renew for successive renewal terms which are equal in length to the Initial Term (each a “Renewal Term” and together with the Initial Term the “Term”) until such time as either party provides the other party with written notice of termination delivered at least thirty (30) days prior to the last day of the then current Term.
Either party may terminate these General Terms immediately if the other party materially breaches any of its duties or obligations hereunder and such breach is not cured, or the breaching party is not diligently pursuing a cure to the non-breaching party’s sole satisfaction, within thirty (30) calendar days after written notice of the breach by the non-breaching party.
If either party (i) files for bankruptcy, (ii) is declared insolvent, or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it, (iii) makes an assignment for the benefit of all or substantially all of its creditors, or (iv) enters into an agreement for the composition, extension or readjustment of substantially all of its obligations, then the other party may, by giving written notice to the first party, terminate these General Terms as of a date specified in such notice; provided, however, that neither party shall have the right to terminate these General Terms so long as the other continues to perform without interruption or a noticeable diminution in its performance hereunder.
Upon the termination of these General Terms, (i) Customer shall pay to Knaq all undisputed amounts due and payable hereunder, if any; (ii) Knaq shall cease providing the Subscription Services and; and (iii) Customer agrees to remove and return all Knaq Equipment from Customer’s premises at Customer’s expense. If these General Terms are terminated for any reason other than as set forth in Section 11(a) or (b), then all fees payable for the remainder of the then current Term shall become immediately due and payable.
Sections 1, 7, 8(b), 11, 12, 13, 14 and 15 shall survive any termination or expiration of these General Terms.
For the purposes of these General Terms, the term “Confidential Information” shall mean all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; or (c) should reasonably be recognized as confidential information of the disclosing party. Customer Data shall be treated by Knaq as Confidential Information. The term “Confidential Information” does not include any information or documentation that was: (i) already in the possession of the receiving party without an obligation of confidentiality; (ii) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (iii) obtained from a source other than the disclosing party without an obligation of confidentiality; or (iv) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party).
The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other than employees, agents, or subcontractors of a party who have a need to know in connection with these General Terms or to use such Confidential Information for any purposes whatsoever other than the performance of these General Terms. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential. The receiving party may disclose Confidential Information of the other party, including Customer Data, to the extent such disclosure is required by law or order of a court of other governmental authority; provided that the receiving party shall use reasonable efforts to promptly notify the disclosing party prior to such disclosure to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.
Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.
Each of Customer and Knaq represent and warrant that (a) it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation; (b) it has all requisite corporate power and authority to execute, deliver, and perform its obligations under these General Terms; and (c) the execution, delivery, and performance of these General Terms has been duly authorized by it and these General Terms constitute the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles.
Knaq warrants that the Knaq Monitoring System, including the Equipment, will be free from manufacturing defects while the Customer is under contract for Subscription Services. Knaq shall, at its option and at its expense (and as Customer’s sole and exclusive remedy for breach of any warranty), repair, replace or issue a credit for any Equipment found to have a manufacturing defect during the warranty period. Performance of the Equipment will be monitored by Knaq such that Knaq is able to (i) notify Customer of faulty Equipment; or (ii) dispatch its Service Technician to investigate the nature of any fault with any Equipment. The warranty provided herein is non-transferrable. It is the Customer’s responsibility to return defective equipment to Knaq, at their cost, for warranty service. Equipment and replacement parts provided by Knaq will be returned to the Customer at no charge. Knaq may, at its option and own cost, dispatch a Service Technician to inspect & repair defective equipment in the field. If, upon inspection, the repair is not covered by warranty because it is in violation of Section 4(b) or 14(a)(ii) below, the customer is responsible for the cost of the Equipment, labor and materials needed to affect the repair at Customer’s contract pricing and our then published service rates. (i) All warranty obligations will cease upon the earlier of the expiration of the warranty period set forth above or the return (at Customer’s request) of any defective Equipment. ALL CLAIMS FOR BREACH OF WARRANTY MUST BE RECEIVED BY KNAQ NO LATER THAN THIRTY (30) DAYS AFTER THE EXPIRATION OF THE WARRANTY PERIOD. (ii) Opening, modifying any enclosure, casing, or other protective covering on any Equipment, tampering with any Equipment, changing the functionality of any Software installed with the Equipment, installing any Equipment in a non-authorized manner will void the warranty. Knaq is not responsible for and does not warrant against any Equipment that has been damaged caused by the environment, negligence, misuse, vandalism or theft. Damaged Equipment or Equipment which is lost, missing, misplaced, or stolen will be replaced by Knaq and Knaq will bill the Customer for the cost of such replaced Equipment and any Services provided by Knaq to replace or install such Equipment.
EXCEPT AS EXPLICITLY SET FORTH HEREIN, THE KNAQ MONITORING SYSTEM IS DELIVERED “AS IS,” AND KNAQ MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT CUSTOMER IS RESPONSIBLE FOR DETERMINING THE APPROPRIATENESS OF THE SYSTEM FOR CUSTOMER’S INTENDED APPLICATION AND USE. KNAQ DOES NOT WARRANT THAT THE SYSTEM WILL OPERATE ERROR FREE AND WILL NOT BE LIABLE FOR CORRUPTION OR ERASURE OF CUSTOMER DATA TRANSMITTED OR RECEIVED OR STORED ON ANY THIRD PARTY OR INTERNET SERVICE PROVIDER SYSTEM WHICH IS BEYOND ITS CONTROL. KNAQ WILL NOT BE LIABLE TO CUSTOMER FOR ANY CLAIMS, LOSSES OR DAMAGES WHICH MAY BE SUFFERED BY CUSTOMER RESULTING FROM THE LOSS OF CUSTOMER DATA, INABILITY TO ACCESS THE INTERNET, OR INABILITY TO TRANSMIT OR RECEIVE INFORMATION, CAUSED BY DELAYS, NON-DELIVERY, OR SERVICE INTERRUPTIONS DUE TO CIRCUMSTANCES NOT IN THE DIRECT CONTROL OF KNAQ SUCH AS, BUT NOT LIMITED TO, CUSTOMER’S EQUIPMENT CAPABILITIES, TELECOMMUNICATIONS FAILURES OR INTERNET SERVICE PROVIDER LIMITATIONS OR FAILURES.
Subject to the limitations set forth in this Section 14, each party agrees to indemnify and save harmless the other party, its officers, directors, agents, and employees from and against any and all liabilities, damages, losses, expenses, claims, demands, suits, fines or judgments (each a “Claim” and collectively, the “Claims”), including, reasonable attorneys’ fees, costs, and expenses incidental thereto, arising from (a) any breach of their respective representations or warranties or covenants under these General Terms; or (b) bodily injury (including death) or damage to tangible personal or real property; provided however the foregoing indemnity set forth in this Section 13(c)(i) shall not apply to the extent that the applicable Claim results from the acts or omissions of any of the party seeking indemnification.
Knaq agrees to indemnify, defend, and hold harmless Customer from and against any and all Claims, including reasonable attorneys’ fees, costs, and expenses incidental thereto, which may be suffered by, incurred by, accrued against, charged to, or recoverable from Customer, by reason of, arising out of or relating to a Claim that the Knaq Monitoring System infringes or misappropriates any patent, copyright, trade secret, trademark, or other proprietary right. Knaq shall have no liability for any claim based on any modification of the Knaq Monitoring System not authorized by Knaq or use of the Knaq Monitoring System other than in accordance with these General Terms. If any Claim is made, or in Knaq’s reasonable opinion is likely to be made, Knaq may, at its sole option and expense, procure for Customer the right to continue use of the Knaq Monitoring System, modify the Knaq Monitoring System in a manner that does not materially impair the functionality, or terminate these General Terms and repay to Customer prepaid fees for the Knaq Monitoring System not yet provided.
A party seeking indemnification under this section shall (A) promptly notify the other party of the Claim, provided that failure to give or delay in giving such notice shall not relieve the indemnifying party of any liability it may have to the other party except to the extent that the defense of the Claim is prejudiced thereby; (B) give the indemnifying party sole control of the defense and settlement of the Claim; and (C) reasonably cooperate with the indemnifying party in defending against or settling a Claim; provided, however, that the indemnifying party shall reimburse such party for all reasonable out-of-pocket costs incurred by the other party (including, without limitation, reasonable attorneys’ fees and expenses) in providing such cooperation.
NOTWITHSTANDING ANY OTHER PROVISION SET FORTH HEREIN, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, AND / OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA, OR USE OF THE SYSTEM, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THESE GENERAL TERMS; PROVIDED, HOWEVER, THAT THE FOREGOING EXCULPATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO DAMAGES INCURRED AS A RESULT OF THE WILLFUL MISCONDUCT OF A PARTY. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THESE GENERAL TERMS, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, EQUITY, NEGLIGENCE, TORT, OR OTHERWISE FOR ALL EVENTS, ACTS, OR OMISSIONS UNDER THESE GENERAL TERMS SHALL NOT EXCEED THE FEES PAID OR PAYABLE UNDER THESE GENERAL TERMS DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CLAIM.
The parties are independent contractors under these General Terms and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor, nor bind the other party.
These General Terms shall for all purposes be governed by and interpreted in accordance with the laws of the State of New York and the parties agree to submit to the non-exclusive jurisdiction of the state and federal courts in the County of New York. The United Nations Convention for the International Purchase and Sale of Goods shall not apply.
Neither party shall be liable for delays or any failure to perform the Services or these General Terms due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this section, and inform the other party of its plans to resume performance.
The failure of either party at any time to require performance by the other party of any provision of these General Terms shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of these General Terms be taken or held to be a waiver of any further breach of the same provision.
All notices, requests, demands and other communications hereunder shall be effective if in writing and delivered personally or sent by electronic mail, Federal Express or other priority delivery service, or by certified or registered mail, postage prepaid, to the applicable party at the addresses indicated on the signature page of these General Terms. Unless otherwise specified herein, such notices or other communications shall be deemed effective (a) on the date delivered, if delivered personally, (b) two (2) business days after being sent, if sent by Federal Express or other priority delivery service, (c) on the date of delivery if delivered sent by electronic mail during normal business hours of the recipient and on the next business day if after normal business hours of the recipient, and (d) five (5) business days after being sent, if sent by registered or certified mail. Either party may specify another address by giving notice as provided in this Section 15(e) to the other party.
Neither party may assign its rights or obligations hereunder without the prior consent of the other party; provided however that, a party may assign these General Terms in connection with a merger or acquisition of the assigning party, to an entity that acquires all or substantially all of the assigning party’s assets or its business that is the subject hereof, or to any subsidiary or parent company.
These General Terms may be executed in two or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. These General Terms shall become binding when one or more counterparts, individually or taken together, shall bear the signatures of all the parties. Each counterpart may be delivered by e-mail (as a .pdf, .tif or similar attachment), which transmission shall be deemed delivery of an originally executed counterpart hereof.
These General Terms and its attached exhibits constitute the entire agreement between the parties and supersede any and all previous representations, understandings, or agreements between Customer and Knaq as to the subject matter hereof. Regardless of the preceding sentence, the parties understand and agree that any non-disclosure agreement entered by the parties prior to the Effective Date shall remain in full force and effect. Any waiver, amendment or other modification of any provision of these General Terms will be effective only if in writing and signed by the parties.
If for any reason a court of competent jurisdiction finds any provision of these General Terms to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of these General Terms will continue in full force and effect.
Each party may use the other party’s name or mark, identify the business relationship between parties and/or share business metrics, such as Knaq’s service benefits, on their respective websites and/or marketing materials.