TERMS OF SERVICE
Last Updated July 1, 2024
These Terms of Service (“Agreement”) govern the use of the Services (as defined below) and are entered into between Kusari, Inc. (“Kusari”) and Customer (as defined in the Order).
By accepting this Agreement, either by clicking a box indicating your acceptance, agreeing to an Order or other document that references this Agreement, by using (or making any payment for) the Services, or by otherwise indicating your acceptance of this Agreement, you: (1) agree to this Agreement on behalf of the organization, company, or other legal entity for which you act (“Customer”); and (2) represent that you have the authority to bind Customer to this Agreement. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Services.
The parties agree as follows:
1. DEFINITIONS
A. “Applicable Law” means all international, federal, state, provincial, and local laws, rules, regulations, binding regulatory guidance, directives, and governmental requirements applicable to the Services, or either party’s performance under this Agreement.
B. “Authorized Users” means employees and contractors of Customer for whom Customer has paid all applicable fees for access to and use of the Platform.
C. “Confidential Information” means information that either party (“Discloser”) discloses to the other party (“Recipient”) under this Agreement and that is marked as confidential or would normally be considered confidential information under the circumstances. “Confidential Information” does not include information that Recipient can document: (1) is independently developed by Recipient; (2) is rightfully given to Recipient by a third party without confidentiality obligations; or (3) becomes public through no fault of Recipient. Kusari’s Confidential Information includes the Documentation, and non-public information regarding features, functionality, and performance of the Platform. Customer’s Confidential Information includes the Customer Data.
D. “Customer Data” means all non-public data and content uploaded by Customer or an Authorized User to the Platform or made available to Kusari by or on behalf of Customer in the course of providing the Services. “Customer Data” does not include Usage Data.
E. “Documentation” means user documentation, in all forms, relating to the Platform made available by Kusari (e.g., user manuals and online help files).
F. “Intellectual Property Rights” means all intellectual property and proprietary rights throughout the world, including patent rights (including utility models), copyrights, moral rights, trademark and service mark rights, trade secret rights, and any other similar proprietary or intellectual property rights.
G. “Order” means an ordering document or online order specifying the Services, including, where applicable, the subscription plan, to be provided under this Agreement that is entered into between Customer and Kusari (including any addenda and supplements thereto).
H. “Order Term” means the Order term length specified in the applicable Order.
I. “Platform” means Kusari’s proprietary software-as-a-service application available at https://www.kusari.dev/, https://www.kusari.cloud, or any related URL.
J. “Service Limitations” means any limitations on Customer’s use of the Platform specified in an Order, including the number of Authorized Users and Customer Property Users.
K. “Services” means Kusari’s provision of the Platform, Support Services, and any other services described in the applicable Order.
L. “Usage Data” means data relating to use of the Platform or any Authorized User’s use of any of the foregoing, that is aggregated and/or deidentified in such a way that it is not associated with Customer or any Authorized User.
2. SERVICES
A. Access to the Platform. Subject to Customer’s payment of all fees and compliance with this Agreement, Kusari grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right during the Order Term to use the Platform by and through its Authorized Users in support of Customer’s business operations and in accordance with any Service Limitations and Documentation. Kusari may modify or update the Platform from time to time to keep the Platform current and relevant for its customer base generally.
B. Registration. To use the Services, Customer may be required to create and register an account with Kusari. Customer represents and warrants that all information provided to Kusari in connection with such registration is true, accurate, and complete. Except as prohibited by law, Kusari may refuse registration or its initial provision of Services for any reason or no reason.
C. Orders. Each Order is subject to, and hereby incorporated into, this Agreement. If there is a conflict between this Agreement and an Order, this Agreement will control unless the Order expressly states that a specific provision of this Agreement will be superseded by a specific provision of the Order.
D. Support Services. Subject to Customer’s payment of all Fees and compliance with this Agreement, Kusari will provide support relating to usage of the Services via email and the support functions within the Platform, or as otherwise described in the applicable Order.
E. Subcontractors. Kusari may use subcontractors (including with respect to the processing of information) or other third parties to perform its obligations under this Agreement, but Kusari will remain responsible for all such obligations.
3. USE RESTRICTIONS AND RESPONSIBILITIES
A. Use Restrictions. Except as may be expressly permitted in this Agreement, Customer will not, and will not authorize third parties to: (1) license, sub-license, sell, transfer, distribute, share, rent, lease, or otherwise permit third parties to use the Platform or Documentation; (2) use the Platform, or Documentation to provide services to third parties (e.g., as a service bureau); (3) use the Platform in violation of the Service Limitations or this Agreement; (4) circumvent or disable any security or other technological features or measures of the Platform; (5) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Platform; (6) modify, translate, or create derivative works based on the Platform or Documentation; (7) remove any proprietary notices or labels from the Platform or Documentation; (8) use the Platform in a manner that violates or attempts to circumvent Applicable Law; (9) use the Platform to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Platform; or (10) access the Platform to develop a competing product or service.
B. Authorized Users; Accounts. Customer is responsible and liable for all actions and inactions by its Authorized Users or by any other person or entity to whom Customer or an Authorized User may, directly or indirectly, provide access to or permit to use, deploy, or otherwise benefit from the Platform (“Downstream Entities”); in each case, as if such action or inaction were an action or inaction of Customer. As part of the registration process, Customer will identify an administrative username and password for Customer’s Platform account. Customer represents and warrants that all registration information Customer provides is truthful, accurate, and complete, and that Customer will maintain the accuracy of such information. Customer is responsible for maintaining control over Customer’s account, including the confidentiality of Customer’s username and password, and is responsible for all activities that occur on or through Customer’s account and all Authorized Users’ accounts, whether authorized by Customer or not.
C. Third-Party Software. Certain components of software included as part of the Services, such as through integrations made available by Kusari, are licensed from third parties and are subject to terms and conditions provided by such third parties, including open-source or private models, algorithms, and systems ("Third-Party Software"). Each component of Third-Party Software is licensed under the terms of the license that accompanies such Third-Party Software, which may include open-source licenses. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede rights available in, the terms and conditions of any applicable license for the Third-Party Software. Third-Party Software may be subject to separate license agreements or restrictions on use ("Third-Party Restrictions"), and Customer agrees to comply with all such Third-Party Restrictions. THIRD-PARTY SOFTWARE IS PROVIDED BY THIRD PARTIES, NOT KUSARI. KUSARI DOES NOT WARRANT, SUPPORT, OR ACCEPT RESPONSIBILITY OF ANY KIND FOR THIRD-PARTY SOFTWARE.
D. Optional Third-Party Services. Kusari and third parties may make available integrations between the Services and third-party products or services, including plugins and related services ("Third-Party Services") that Customer may elect to use. Any use of such Third-Party Services is solely between Customer and the applicable Third-Party Service provider. Because the Third-Party Services rely on the Third-Party Service provider's continued operation, Kusari does not warrant or provide support for Third-Party Services. Kusari is not responsible for any violations of Applicable Law by Third-Party Service providers, or for any liability arising from Customer’s use thereof. Kusari does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Service features), and if such Third-Party Services or related features are discontinued, Customer will not be entitled to any refund, credit, or other compensation. Depending on Customer’s location, certain Third-Party Services may not be available.
4. DATA AND INTELLECTUAL PROPERTY
A. Responsibility for Customer Data. Customer is solely responsible for Customer Data and the consequences of providing it to Kusari under this Agreement. By providing Customer Data to Kusari, Customer represents and warrants to Kusari that Customer has the necessary consents to do so and Kusari’s processing of Customer Data complies with Applicable Law. Customer further agrees that Kusari is not responsible for the accuracy of Customer Content or any derivative thereof generated by the Services.
B. Ownership of Customer Data. Customer owns the Customer Data, including all Intellectual Property Rights therein. No ownership rights in the Customer Data are transferred to Kusari by this Agreement. Kusari does not have any rights to the Customer Data except for the limited express rights granted in this Agreement. Customer hereby grants Kusari a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid, sublicensable (to Kusari’s third-party service providers) license to host, store, transfer, display, perform, reproduce, modify, create derivative works of, and distribute Customer Data, in whole or in part, in any media or distribution methods now known or later developed, solely during the Term and as necessary for Kusari to provide the Services to Customer and in accordance with the settings on Customer’s account and the features of the Services Customer elects to utilize.
C. Kusari IP. Kusari and its licensors own the Platform, Documentation, and Usage Data, including all Intellectual Property Rights therein (“Kusari IP”). No ownership rights in the Kusari IP are transferred to Customer by this Agreement. Customer does not have any rights in or to the Kusari IP except for the limited express rights granted in this Agreement.
D. Feedback. If Customer gives Kusari feedback, comments, or suggestions concerning the Services (collectively, “Feedback”), Customer hereby assigns to Kusari all right, title, and interest in and to the Feedback, and Kusari is free to use the Feedback without payment, attribution, or restriction.
E. Usage Data. Kusari may collect and analyze Usage Data and other information relating to the provision, use, and performance of various aspects of the Platform and related systems and technologies (including information provided by third-party analytical tools). Kusari may use Usage Data for any purpose, including to improve the Services and develop new products, services, features, and functionality.
5. CONFIDENTIALITY
A. Obligations. Each party as Recipient will take reasonable precautions to protect Discloser’s Confidential Information and will not use (except as expressly permitted in this Agreement) or divulge to any third party any Confidential Information except to those employees and representatives of Recipient who have a need to know the Confidential Information to enable Recipient to perform its obligations under this Agreement. Recipient is responsible and liable for its employees’ and representatives’ compliance with this Section 5 (Confidentiality), as if their actions or inactions were an action or inaction of Recipient. The foregoing will not apply with respect to any Confidential Information five years after the disclosure thereof (or, with respect to trade secrets, for so long as such Confidential Information constitutes a trade secret under Applicable Law), or any Confidential Information that is required to be disclosed by Applicable Law.
B. Privacy Policy. Customer acknowledges and agrees that Kusari will operate in accordance with its published Privacy Policy available at https://www.kusari.dev/privacy-policy, which is hereby incorporated by reference.
6. FEES AND PAYMENT
A. Fees and Payment. Customer will pay Kusari all fees for the use of the Services described in an Order in accordance with the terms therein (“Fees”); provided, if in any month Customer exceeds the monthly users permitted under its Order subscription plan, Customer will pay Kusari all fees associated with Kusari’s then-current plan pricing allowing for such number of monthly users. If in any month Customer exceeds the monthly users permitted under any standard Kusari subscription plan, Kusari may (without limiting any other available remedy to Kusari) restrict Customer’s usage to the maximum monthly users (or any greater amount, in Kusari’s sole discretion) permitted under a standard subscription plan. Kusari may change the Fees or applicable charges or institute new charges and Fees at the end of the initial Order Term or then-current renewal Order Term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer believes that Kusari has billed Customer incorrectly, Customer must contact Kusari no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. All Fees are non-refundable, except as otherwise specified in this Agreement.
Kusari, in its sole discretion and at any time, may modify Fees; provided, any Fee change will become effective after the end of the then-current billing cycle. Kusari will provide Customer with reasonable prior notice of any such change and allow Customer to terminate this Agreement or any affected Order before such change becomes effective. Customer’s continued use of Services after a Fee change comes into effect constitutes Customer’s agreement to pay the modified Fee amount.
Unless otherwise set out in the applicable Order, Subscription Fees and Usage Fees are payable within thirty (30) days following the month such Fees are incurred. Unpaid amounts (including due to Customer’s failure to maintain up-to-date and accurate billing information in connection with its account) are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by Applicable Law, whichever is lower, plus all expenses of collection, and may result in immediate termination of access to the Platform. Customer will pay all Fees in U.S. Dollars.
B. Payment Processing. Kusari may require payment by credit card, debit card, or other payment instruments which are processed and billed by Kusari’s third-party payment processors (“Payment Processor”). Customer hereby authorizes Kusari’s Payment Processors to bill Customer’s payment instrument on file with Kusari (or provided by or on behalf of Customer to Kusari or a Payment Processor in connection with any invoice or charge) in accordance with each Order. Such billing may include advance payment on a periodic basis and ad hoc charges for usage Fees and other one-time payments. Kusari will provide Customer with, or otherwise make available to Customer, a receipt for each such charge. If Kusari’s Payment Processor is Stripe Inc. (“Stripe”), the processing of credit card charges or credits through Stripe, as applicable, relating to use of the Service is subject to the Stripe Connected Account Agreement (https://stripe.com/connect-account/legal), which includes the Stripe Terms of Service (https://stripe.com/legal) (collectively, the “Stripe Services Agreement”). Customer hereby agrees to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time as set forth therein. Customer agrees to provide Kusari and its Payment Processors with current, accurate, and complete information about Customer and Customer’s payment methods.
C. Taxes. Other than federal and state net income taxes imposed on Kusari, Customer will bear all taxes, duties, and other governmental charges relating to the Services.
7. TERM AND TERMINATION
A. Term. The term of this Agreement will commence on the effective date of the first Order between the parties and will continue until terminated in accordance with this Agreement (the “Term”). If a term is not specified in an Order, the term of such Order will be one (1) month.
B. Termination for Breach or Insolvency. Either party may terminate this Agreement or an Order, effective upon written notice to the other party, if the other party materially breaches this Agreement or an Order and such breach is incapable of cure, or (if such breach capable of cure) the breaching party does not cure such breach within 30 days of receiving notice of it. Kusari may terminate or suspend this Agreement or any part of it immediately upon written notice to Customer without a cure period if Customer breaches Section 3.A (Use Restrictions) or any of the terms of this Agreement relating to Kusari’s Intellectual Property Rights or Kusari’s Confidential Information. Kusari may terminate this Agreement, effective immediately upon written notice, if Customer files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
C. Effect of Termination. Expiration or termination of this Agreement will automatically terminate all active Orders, but termination of a single Order will not result in termination of this Agreement or any other Orders. Upon the expiration or termination of this Agreement or an Order all rights and licenses granted by Kusari to Customer under this Agreement or the applicable Order will terminate. Either party’s termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms.
D. Post-Termination Obligations. Upon any expiration or termination of this Agreement, Kusari will make all Customer Data then held by Kusari available to Customer for electronic retrieval for a period of 30 days. After such period, Kusari will delete any stored Customer Data. Upon expiration or termination of this Agreement for any reason: (1) Kusari will not refund Customer any Fees paid in advance of such expiration or termination; and (2) within ten days after such expiration or termination, Customer will pay Kusari all remaining usage Fees owed under any terminated Order. The following sections of this Agreement will survive any expiration or termination of this Agreement: Sections 1 (Definitions), 4 (Data and Intellectual Property), 5 (Confidentiality), 6 (Fees and Payment), 7.C (Effect of Termination), 7.D (Post-Termination Obligations), 8.D (Combinations), 8.E (Disclaimer), 9 (Indemnification), 10 (Limitations of Liability), 11 (Arbitration), and 12 (Miscellaneous).
8. WARRANTIES AND DISCLAIMER
A. Mutual Warranties. Each party represents and warrants to the other that: (1) this Agreement has been duly executed and delivered and constitutes a binding agreement enforceable against the executing party in accordance with its terms; (2) no authorization or approval from any third party is required in connection with the execution, delivery, or performance of this Agreement by the executing party; and (3) the execution and delivery of this Agreement by the executing party do not violate Applicable Law or the terms of any other agreement to which it is a party or by which it is otherwise bound.
B. Kusari Warranty. Kusari represents and warrants to Customer that: (1) Kusari will perform the Services in a good and workmanlike manner; and (2) Kusari has the necessary rights to authorize Customer to use the Platform in accordance with this Agreement.
C. Customer Warranty. Customer represents and warrants to Kusari that it: (1) has the rights and consents necessary and appropriate to authorize and permit Kusari to use all data and information provided or made available to it by or on behalf of Customer (including all Input) in accordance with this Agreement, and such use by Kusari of Input will not infringe or violate any third-party (including any Authorized User) right, including any Intellectual Property Right or privacy right; (2) will use the Platform in compliance with the Documentation and Applicable Law; (3) will provide and maintain accurate, current and complete information required to enable Authorized Users to register for and use the Platform; and (4) unless Customer has received sufficient prior written authorization, Input does not contain any confidential information of any third party.
D. Combinations. Kusari will have no obligation for any infringement of Intellectual Property Rights relating to Customer’s use of the Platform, to the extent arising out of: (1) use of Platform in combination with other products or services not recommended or provided by Kusari; (2) designs, requirements, or specifications required by or provided by Customer; (3) use of the Platform in breach of this Agreement or outside the scope of the license granted to Customer; (4) Customer’s failure to use Platform in accordance with the Documentation; or (5) any modification of the Platform not made or authorized in writing by Kusari.
E. Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 8 (WARRANTIES AND DISCLAIMER), KUSARI MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PLATFORM, DOCUMENTATION, SERVICES, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTIES DESCRIBED IN THIS SECTION 8 (WARRANTIES AND DISCLAIMER), THE PLATFORM, DOCUMENTATION, AND SERVICES ARE PROVIDED “AS IS.” KUSARI DOES NOT WARRANT THAT THE PLATFORM, DOCUMENTATION, OR SERVICES WILL SATISFY CUSTOMER’S REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED. KUSARI MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO ANY THIRD PARTY SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF WARRANTIES, SO THAT LIMITATION OR EXCLUSION MAY NOT APPLY TO CUSTOMER.
F. Beta Features. Kusari may make features of the Platform classified as “alpha” or “beta” available to Customer (“Beta Features”). Kusari makes no representations that any Beta Features will be made generally available and Kusari may discontinue or modify any Beta Feature without notice. Beta Features are provided “AS IS,” and Customer’s use of a Beta Feature is at Customer’s sole risk.
9. INDEMNIFICATION
A. Defense. At Kusari’s option and request, Customer will defend Kusari and its officers, directors, employees, agents, service providers, licensors, and affiliates (collectively, the “Kusari Indemnified Parties”) from any actual or threatened third-party claim, proceeding, suit, action, or inquiry arising out of or based on Customer’s breach of Section 3 (Use Restrictions and Responsibilities) or Section 8 (Warranties and Disclaimer) (“Customer Indemnifiable Claim”). If Kusari requests Customer to defend it from any Customer Indemnifiable Claim, Kusari will: (1) give Customer prompt written notice of the Customer Indemnifiable Claim; (2) grant Customer full and complete control over the defense and settlement of the Customer Indemnifiable Claim; (3) provide assistance in connection with the defense and settlement of the Customer Indemnifiable Claim as Customer may reasonably request; and (4) comply with any settlement or court order made in connection with the Customer Indemnifiable Claim. Notwithstanding the previous sentence, Customer will not enter into any settlement that involves an admission of guilt or liability of Kusari without Kusari’s prior written consent. Kusari may participate in the defense of a Customer Indemnifiable Claim at its own expense and with counsel of its own choosing.
B. Indemnification. Customer will indemnify the Kusari Indemnified Parties from and pay: (1) all damages, costs, fines, judgments, expenses, and attorneys’ fees reasonably incurred by Kusari Indemnified Parties in any Customer Indemnifiable Claim; and (2) all amounts that Customer agrees to pay to any third party to settle any Customer Indemnifiable Claim.
C. IP Infringement. If the Platform is held to infringe (or if Kusari reasonably believes will be held to infringe) any third-party Intellectual Property Rights, Kusari may, at its option and expense: (1) modify the Platform to make it non-infringing; or (2) obtain a license that permits Customer to continue using the Platform. If Kusari does not believe either option is reasonably practicable, Kusari may terminate this Agreement. This Section 9 (Indemnification) states Kusari’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third-party Intellectual Property Rights arising from Customer’s use of the Platform.
10. LIMITATIONS OF LIABILITY
A. Exclusion of Damages. KUSARI WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, EVEN IF KUSARI IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
B. Damages Cap. KUSARI’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO KUSARI UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM, LESS ANY LIABILITIES PREVIOUSLY INCURRED BY KUSARI.
C. Applicability. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DAMAGES. THIS SECTION 10 (LIMITATIONS OF LIABILITY) WILL APPLY TO CUSTOMER SOLELY TO THE EXTENT PERMITTED BY APPLICABLE LAW.
11. ARBITRATION
A. Generally. Any claim, dispute, or controversy between the parties arising out of or relating to this Agreement which cannot be satisfactorily settled by the parties will be finally and exclusively settled by binding arbitration (“Arbitration”) upon the written request of either party. The Arbitration will be administered under the American Arbitration Association’s Commercial Dispute Resolution Procedures in force when the notice of arbitration is submitted (the “Rules”). The Arbitration will be conducted by one arbitrator selected in accordance with the Rules. The seat of the Arbitration will be in Ridgefield, Connecticut. The Arbitration will be conducted in English. The Arbitration award will be final and binding upon the parties, and judgment upon such award may be entered in any court having jurisdiction. The Arbitration proceedings and any award will be each party’s Confidential Information. The arbitrator’s award may include compensatory damages against either party but the arbitrator will not be authorized to and will not award punitive damages against either party. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by Applicable Law and to the extent not already in the public domain. Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (A) seek injunctive relief in a court of law; or (B) to file suit in a court of law to address an intellectual property infringement claim.
12. MISCELLANEOUS
A. Publicity. Kusari may publicly list Customer as a customer of Kusari and use Customer’s trademark, trade name, and logo for marketing or promotional purposes and in other communications with existing or potential Kusari customers, resellers, or investors.
B. Governing Law. This Agreement is governed by Connecticut law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Subject to Section 11 (Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts in Connecticut. The parties submit to the jurisdiction in those courts.
C. Injunctive Relief. If either party breaches Sections 3.A (Use Restrictions), 4 (Data and Intellectual Property), or 5 (Confidentiality), the other party may suffer irreparable harm, and monetary damages may be inadequate to compensate the non-breaching party. Accordingly, either party may, in addition to any other remedies available to it at law or in equity, seek injunctive or other equitable relief in response to any such breach.
D. Further Assurances. Each party will execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in this Agreement.
E. Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
F. Assignment. Customer may not assign this Agreement or delegate its performance without Kusari’s prior written consent, and any attempt to do so is void. Kusari may assign this Agreement or delegate its performance without Customer’s consent. This Agreement is binding upon and inures to the benefit of the parties’ permitted successors and assigns.
G. Severability. If any provision of this Agreement or portion of a provision is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
H. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
I. Entire Agreement. This Agreement (including the Privacy Policy and any Orders) constitutes the entire agreement and supersedes any other agreement of the parties relating to its subject matter (including any nondisclosure agreements entered into in anticipation of this Agreement). Any additional provisions (including any “click wrap” terms, terms referenced via URL, or otherwise) in any purchase order or other document provided by Customer will be void and have no binding effect on Kusari. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement the terms of the Agreement.
J. Amendment. This Agreement may only be amended in a writing signed by both parties and stating that it is amending this Agreement.
K. Relationship. The parties are independent contractors of each other. Each party is responsible for instructing and managing its employees and personnel. This Agreement does not create any agency, partnership, or joint venture relationship between the parties.
L. No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
M. Notices. All notices under this Agreement must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by an internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgment of receipt, if delivered by email. Either party may update its notice address by providing notice to the other party. All notices to Kusari will be sent to:
Kusari, Inc.
PO Box 1074
Ridgefield, CT 06877
Email: info@kusari.dev
Attn: Legal
N. Force Majeure. Kusari will not be liable for any delay or failure to perform under this Agreement as a result of any cause or condition beyond Kusari’s reasonable control (a “Force Majeure Event”), so long as Kusari uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Kusari to delay or fail to perform its obligations under this Agreement for 30 consecutive days, either party may terminate this Agreement.
O. Interpretation. If Kusari provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail. Any heading, caption, or section title contained in this Agreement is for convenience only, and in no way defines or explains any section or provision. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.”
P. Counterparts. This Agreement may be executed in counterparts (which may be exchanged by email). Each counterpart should be considered an original, but all counterparts together should constitute the same Agreement.