Legal

Terms of Service

Last Update: March 3rd, 2022

These terms and conditions (the “Agreement”) govern the purchase and use of Ketryx Platform by the Customer listed on the Order Form or Statement of Work that incorporates this Agreement.

Structure and Order of Precedence. The General Terms Applicable to the Ketryx Platform (“General Terms”) provide the terms under which the Customer may use Ketryx's various Offerings. The specific rights for the Customer to use and/or receive the Ketryx Platform, Support Services or Subscriptions are set forth in the applicable ”Schedule.“ In the event of conflict between any of the General Terms and a Schedule, the Schedule will govern.

Acceptance. If you have arrived at this page via a link provided during the process of installing or logging into the Ketryx Platform, you acknowledge that by proceeding with the installation or use of that Offering, you agree to be bound by this Agreement. If this Agreement is considered an offer, acceptance is expressly limited to the terms of this Agreement. If you do not unconditionally agree to the foregoing, discontinue the installation or login process. If you proceed with installation or logging in, you are representing and warranting that you are authorized to bind the Customer.

Updates. Ketryx periodically updates the terms of this Agreement. Ketryx will notify you of updates via an email or a notification on the platform. Unless the notice states otherwise, the updated terms of this Agreement will become effective and binding on the next business day after it is posted. The previous versions of this Agreement can be made available upon request.

General Terms

1. Definitions

1.1 “Agreement” means the Master Services Agreement, together with an applicable Order Form and/or SOW, and applicable exhibit, schedule or addendum thereto.
1.2 “Applicable Law”
means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any supranational, federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
1.3 “Customer Software“ means software delivered or uploaded to the Ketryx Platform by Customer, from time to time, for processing, analysis, development and/or configuration on the Ketryx Platform.

1.4 “Deployment and Integration Services” or “D&I Services“ means professional services provided by Ketryx for the purpose of assisting the Customer in deploying, configuring, and integrating the Ketryx Platform with Customer's own computing facilities and network.

1.5 “Documentation“ means the user manuals, if any, generally provided in writing by Ketryx to end users of the Ketryx Platform in electronic format, as may amended from time to time by Ketryx.

1.6 “Ketryx“ means Ketryx Corporation, a Delaware corporation with its principal place of business at 240 Elm St, Suite 220, Somerville, MA 02144.

1.7 “Ketryx Materials“ means all Ketryx proprietary materials, intellectual property related to the Ketryx Platform, Ketryx Products, Services or Reports (such as copyrights, and patent, trade secret and trademark rights related to Ketryx Platform, and screens, any user interface associated with Ketryx Platform and Ketryx Products), Documentation, any hardware and/or software used by Ketryx in performing Services or providing Subscriptions, Ketryx's processes and methods (including any forensic investigation processes and methods), materials distributed by Ketryx during Training, and any Ketryx templates and/or forms, including report and presentation templates and forms. Ketryx Materials does not include Third Party Materials.

1.8 “Intellectual Property Rights“ means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors' rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country or jurisdiction.

1.9 “Offerings“ means, collectively, the Ketryx Platform, Ketryx Products, Subscriptions, Training, Professional Services, D&I Services and Support Services.

1.10 “Order Form“ means a written purchase order or similar ordering document, signed or submitted to Ketryx by Customer and approved by Ketryx, under which Customer agrees to purchase or subscribe to an Offering.

1.11 “Ketryx Platform“ means Ketryx proprietary software, provided as a web-based application for the purpose of providing access to and supporting the operation and processing of Ketryx Products.
1.12 "Ketryx Products" means the applications made available to Customer by Ketryx on the Ketryx Platform pursuant to an Order Form, whether for the purpose of scanning, analyzing or reporting on Customer Software for FDA compliance purposes or for performing other functions as described on an Order Form.
1.13 "Master Service Agreement" or "MSA" means the certain Master Services Agreement, by and between Ketryx and Customer, to which these Terms of Service are appended.  
1.14 “Professional Services” means any consulting, development, workflow configuration, regulatory validation or other services provided by Ketryx to Customer pursuant to an agreed upon SOW.

1.15 “Reports“ means the analysis and reports generated automatically pursuant to the scanning and processing of Customer Software by the Ketryx Platform, in a format determined and, from time to time, modified by Ketryx.

1.16 “Service“ or “Services“ means the Professional Services, D&I Services, Support Services and Training.

1.17 “Statement of Work“ or “SOW“ means a mutually agreed-upon document between Ketryx and Customer, describing Services, rates and timelines (if applicable) for those Services, and incorporating this Agreement.

1.18 “Subscription“ means an Offering provided by Ketryx for a fixed term, under which Ketryx provides access to certain features, functionality, and/or information, relating to the Ketryx Platform and/or Ketryx Products, as described in the applicable Schedule for each Subscription attached to this Agreement.

1.19 “Support Services“ means the Subscription support and maintenance services provided by Ketryx with respect to the Ketryx Platform, Ketryx Products and Subscription, as described in an applicable Schedule.

1.20 “Third Party Materials“ means software or other components that are licensed to Ketryx by third parties for use in the Ketryx Platform.

2. Orders and Statement of Work

2.1 Each Order Form and Statement of Work will incorporate and be governed by these Terms of Service.  Customer may purchase Offerings by submitting an Order Form.  If accepted by Ketryx, the “Order Effective Date” will be the date of the Order Form. 

2.2 “Statement of Work Effective Date” will be the date both Customer and Ketryx have agreed to the Statement of Work, either by executing the Statement of Work or by issuing and accepting an Order Form for the Services described on the Statement of Work. For clarity, Ketryx will not be obligated to perform any Services until a SOW describing those Services has been agreed by both parties or an Order Form listing those Services has been accepted by Ketryx.

3. Processing of Customer Software

3.1 Subject to payment of all fees, Ketryx grants to Customer a personal, non-sub licensable right, during the Offering Term from time to time as specified in an Order Form, to deliver to the Ketryx Platform Customer Software, in source code or another format, for processing, analysis and/or configuration using Ketryx Products in accordance with the Agreement and Documentation. Certain Ketryx Products will be subject to usage and licensing limitations as set forth below (“Usage Restrictions”):

3.2 Ketryx will not (and will not allow any third party to):

  1. sell, resell, distribute, sublicense or otherwise transfer, any Customer Software, or make the functionality of the Customer Software available to any other party through any means;

  2. without the express prior written consent of Customer or as otherwise set forth in an Order Form, conduct any study or analysis involving the Customer Software for any reason or purpose other than pursuant to the processing of the Ketryx Products in accordance with the Documentation and to produce the Reports.

3.3 Customer is solely responsible for any and all obligations with respect to the performance, functionality and legality of Customer Software, to include its compatibility with the requirements of the Documentation and Ketryx Products. Customer will obtain all third party licenses, consents and permissions needed for Ketryx to use, copy, store and process the Customer Software to provide the Services, including the right to scan and process such Customer Software. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary consents and rights for Ketryx to use the Customer Software for the purposes set forth in this Agreement. 

4. Fees and Payment

4.1 Fees and Expenses. Customer agrees to purchase the Offerings for the prices set forth in each Order Form and/or Statement of Work, as applicable (“Fees”). If Customer purchases through a Ketryx partner (such as an authorized reseller or distributor, collectively, “Ketryx Partners”), all fees and other procurement and delivery terms shall be agreed between Customer and the applicable partner.

4.2 Payment. If Customer purchases directly from Ketryx, Customer will make full payment in U.S. Dollars, without set-off and in immediately available funds, within thirty (30) days of the date of each invoice.  All Fees are non-cancelable and non-refundable.  All Fees described on an Order Form and in a Statement of Work will be fully invoiced in advance, unless otherwise agreed by Ketryx.  If any payment is more than fifteen (15) days late, Ketryx may, without limiting any remedies available to Ketryx, terminate the applicable Order Form or Statement of Work, or suspend performance until payment is made current, and all payments then due will accelerate and become immediately due and payable. Customer will pay interest on all delinquent amounts at the lesser of 1.5% per month or the maximum rate permitted by Applicable Law. 

4.3 Taxes. All Fees are exclusive of all present and future sales, use, excise, value added, goods and services, withholding and other taxes, and all customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon the Offerings, which shall be invoiced to and paid by the Customer.  If Customer is required by law to make any deduction or withholding on any payments due to Ketryx, Customer will notify Ketryx and will pay Ketryx any additional amounts necessary to ensure that the net amount Ketryx receives, after any deduction or withholding, equals the amount Ketryx would have received if no deduction or withholding had been required.  Additionally, Customer will provide to Ketryx evidence, to the reasonable satisfaction of Ketryx, showing that the withheld or deducted amounts have been paid to the relevant governmental authority.  For purposes of calculating sales and similar taxes, Ketryx will use the address set forth on the Order Form or Statement of Work, as applicable, as the jurisdiction to which Offerings and shipments are delivered unless Customer has otherwise notified Ketryx in writing as of the Order Effective Date or Statement of Work Effective Date, as applicable. Customer will provide tax exemption certificates or direct-pay letters to Ketryx on or before the Order Effective Date or Statement of Work Effective Date, as applicable.

4.4 Increases. Ketryx reserves the right to increase Fees at any time, although increases in Fees for Subscriptions or Support Services will not go into effect until the next Renewal Subscription Term or Renewal Support Term, as applicable.

5. Evaluations, Free Offerings

If Customer receives a Subscription and/or Reports for evaluation purposes (“Evaluation Offerings”), then Customer may use the Evaluation Offerings for its own internal evaluation purposes for a period of up to thirty (30) days from the date of receipt of the Evaluation Offerings (the “Evaluation Period”). Customer and Ketryx may, upon mutual written agreement (including via email), extend the Evaluation Period. If the Evaluation Offering is a Subscription, Customer understands that Ketryx may disable access to the Subscription automatically at the end of the Evaluation Period, without notice to Customer. EVALUATION OFFERINGS AND UNPAID OFFERINGS ARE PROVIDED “AS IS”, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, KETRYX DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION OFFERINGS AND FREE OFFERINGS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, ACCURACY, AND FITNESS FOR A PARTICULAR PURPOSE.

6. Intellectual Property

6.1 Ownership of Ketryx Materials; Restrictions. The Ketryx Materials, Documentation, Reports, alerts, and intelligence and content made available through the Ketryx Platform and Ketryx Products are the sole property of Ketryx.  All Intellectual Property Rights in Ketryx Materials, Ketryx Products, Documentation, and Subscriptions belong exclusively to Ketryx and its licensors. Customer will not (and will not allow any third party to):

  1. use any Ketryx Materials to disassemble, decompile, reverse compile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Ketryx Materials;

  2. sell, resell, distribute, sublicense or otherwise transfer, the Ketryx Materials, or make the functionality of the Ketryx Materials available to any other party through any means (unless otherwise Ketryx has provided prior written consent),

  3. without the express prior written consent of Ketryx, conduct any benchmarking or comparative study or analysis involving the Ketryx Materials (“Benchmarking”) for any reason or purpose; or

  4. reproduce, alter, modify or create derivatives of the Ketryx Materials. Ketryx may audit Customer's use of Offerings to ensure compliance with the terms of this Agreement.

6.2 Customer Software. The Customer Software and Customer’s Confidential Information, and all worldwide Intellectual Property Rights therein, are the exclusive property of Customer. All rights in and to the Customer Software and Customer’s Confidential Information not expressly granted to Ketryx in this Agreement are reserved by Customer. Customer grants Ketryx a non-exclusive, worldwide, royalty-free and fully-paid license, during the Term, to:

(a) to download, store, process and use Customer Software as necessary for purposes of using, providing and improving the Ketryx Platform, Ketryx Products, Ketryx Materials and the Services,

(b) to use the Customer Marks as required to provide the Services and Offerings; and

(c) on a perpetual basis, to use data and information derived from the Customer Software in an aggregated and anonymized form to:

  1. improve the Services, the Ketryx Platform, Ketryx Products, and Ketryx Materials;

  2. provide analytics and benchmarking services; and

  3. generate and disclose statistics regarding use of the Ketryx Platform, Ketryx Products and Services.

6.3 Feedback. Customer hereby grants to Ketryx a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the Ketryx Platform and Ketryx Materials, including for the purpose of improving and enhancing the Ketryx Platform, Ketryx Products, Ketryx Materials and the Services.

6.4 Publicity. Ketryx may use Customer’s name, trademarks trade names, service marks and logos (including on Ketryx’s website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers.

6.5 Aggregated Data. Customer grants to Ketryx a perpetual, irrevocable, fully-paid-up, royalty free license to use data derived from Customer's use of the Offerings and from the Ketryx Platform’s and Ketryx Products’ processing of any Customer Software (the “Aggregated Data”) for Ketryx’s business purposes, including the provision of Offerings to Ketryx’s other customers; provided the Aggregated Data is combined with similar data from other customers and not identifiable to Customer. The Aggregated Data will not be considered Customer Confidential Information.

7. Warranties

7.1 Platform Warranty. Except as otherwise set forth in a Schedule, Ketryx warrants to Customer that the Ketryx Platform and Ketryx Products will perform substantially in accordance with applicable Documentation.  Ketryx covenants and agrees to provide Support Services in accordance with the requirements set forth at Exhibit A.

7.2 Services Warranty. Ketryx warrants to Customer that Services will be performed in a professional manner in accordance with industry standards for like services.  If Customer believes the warranty stated in this Section has been breached, Customer must notify Ketryx of the breach no later than thirty (30) days following the date the Services were performed, and Ketryx will promptly correct or re-perform the Services, at Ketryx’s expense.

7.3 Subscription Warranty. Ketryx warrants to Customer the Subscriptions will be provided in a professional manner in accordance with industry standards for similar subscriptions.  If Customer believes the warranty stated in this Section has been breached, Customer must notify Ketryx of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and Ketryx will promptly correct the non-conformity, at Ketryx’s expense.

7.4 Remedies Exclusive. The remedies stated in Sections 7.1-7.3 above are the sole remedies, and Ketryx’s sole obligation, with respect to the Ketryx Platform, Ketryx Products, Subscriptions and Services that fail to comply with the foregoing warranties.   

7.5 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE KETRYX PLATFORM, KETRYX PRODUCTS, SUBSCRIPTIONS, KETRYX MATERIALS, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. KETRYX AND ITS SUPPLIERS EXPRESSLY DISCLAIM, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. KETRYX ALSO MAKES NO WARRANTY REGARDING NON-INTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT THE KETRYX PLATFORM, ANY KETRYX PRODUCTS OR KETRYX MATERIALS OR THE SERVICES OR SUBSCRIPTIONS WILL BE ERROR-FREE.  KETRYX MAKES NO WARRANTY AND ASSUMES NO OBLIGATIONS REGARDING THE COMPLIANCE OF ANY CUSTOMER SOFTWARE WITH APPLICABLE LAW NOR REGARDING THE PERFORMANCE OR FUNCTIONALITY OF SUCH CUSTOMER SOFTWARE. 

7.6 Customer Warranty. Customer covenants and agrees that the Customer Software will not:

(a) infringe or misappropriate any third party's Intellectual Property Rights;

(b) contain any viruses, worms or other malicious computer programming codes; nor

(c) otherwise violate the rights of a third party (including under all applicable privacy laws). Customer will not deliver to Ketryx any Customer Software or data that contains personal information or other sensitive information.

8. Infringement Indemnity

8.1 Indemnity. Ketryx shall defend Customer and its officers, directors and employees against any third party action alleging that the Ketryx Materials infringe a valid U.S. patent or copyright issued as of the date of delivery or performance, as applicable, and Ketryx shall pay all settlements entered into, and all final judgments and costs (including reasonable attorneys’ fees) finally awarded against such party in connection with such action.  If the Ketryx Materials, or parts thereof, become, or in Ketryx’s opinion may become, the subject of an infringement claim, Ketryx may, at its option:

(i) procure for Customer the right to continue using the applicable Ketryx Materials;

(ii) modify or replace such Ketryx Materials with a substantially equivalent non-infringing Ketryx Materials; or

(iii) require the return of such Ketryx Materials or cease providing affected Subscriptions, Deliverables or Services, and refund to Customer a portion of any pre-paid Fees for such Subscriptions, pro-rated for any unused Subscription Term, and with respect to Services, any pre-paid Fees for Services that have not been delivered. THIS SECTION 8.1 STATES THE ENTIRE LIABILITY OF KETRYX AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE OFFERINGS, KETRYX MATERIALS, OR DELIVERABLES.
8.1.2 Customer shall defend Ketryx and its officers, directors and employees against any third party action alleging that Customer Software infringes a valid U.S. patent or copyright, and Customer shall pay all settlements entered into, and all final judgments and costs (including reasonable attorneys’ fees) finally awarded against such party in connection with such action. 

8.2 Exceptions. Ketryx shall have no indemnification obligations with respect to any action arising out of:

(i) the use of any Ketryx Material, Offering, Subscription, or Service, or any part thereof, in combination with software or other products not supplied by Ketryx;

(ii) any modification of the Ketryx Materials, Offerings, Subscriptions, or Services not expressly authorized by Ketryx; or

(iii) the use of any the Ketryx Materials, Offerings, Subscriptions, or Services other than in accordance with this Agreement and applicable Documentation.

8.3 Indemnification Process. The indemnification obligations shall be subject to a party:

(i) notifying Ketryx within ten (10) business days of receiving notice of any threat or claim in writing of such action;

(ii) giving the indemnifying party exclusive control and authority over the defense or settlement of such action;

(iii) not entering into any settlement or compromise of any such action without Ketryx or the indemnifying party’s prior written consent; and

(iv) providing reasonable assistance requested by the indemnifying party.

9. Limitation Liability

9.1 Consequential Damages Waiver. EXCEPT FOR LIABILITY ARISING UNDER THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 (INFRINGEMENT INDEMNITY), IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT KETRYX WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

9.2 Limitation of Monetary Damages. EXCEPT FOR LIABILITY ARISING UNDER THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 (INFRINGEMENT INDEMNITY), AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT OR ANY ORDER FORM OR STATEMENT OF WORK, KETRYX’S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT, THE OFFERINGS, AND THE KETRYX MATERIALS SHALL BE LIMITED TO THE TOTAL AMOUNTS RECEIVED BY KETRYX FOR THE RELEVANT OFFERINGS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO SUCH LIABILITY.

9.3 Applicability. THE LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN WILL APPLY ONLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, AND NOTHING HEREIN PURPORTS TO LIMIT EITHER PARTY'S LIABILITY IN A MANNER THAT WOULD BE UNENFORCEABLE OR VOID AS AGAINST PUBLIC POLICY IN THE APPLICABLE JURISDICTION.

10. Compliance with Law

Each party will comply with all laws and regulations applicable to it with respect to the Offerings, including all export control regulations and restrictions that may apply to the Offerings. Notwithstanding the foregoing, Ketryx shall be liable only for compliance with laws applicable to it in its capacity as an information technology services Ketryx and not for laws applicable to Customer’s particular industry.  Notwithstanding anything to the contrary set forth herein or in an Order Form or SOW, in no event shall Ketryx be liable for the failure of Customer Software to comply with the requirements of any Applicable Law. 

11. Confidential Information

11.1 Confidential Information. “Confidential Information” means the non-public information that is exchanged between the parties, provided that such information is:

(i) identified as confidential at the time of disclosure by the disclosing party (“Discloser”); or

(ii) disclosed under circumstances that would indicate to a reasonable person that the information should be treated as confidential by the party receiving such information (“Recipient”). The terms of any commercial transaction between the parties (including pricing related to the Offerings) shall be considered Confidential Information.

11.2 Maintenance of Confidentiality. Each party agrees that it shall:

(i) take reasonable measures to protect the Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of the Confidential Information as the Recipient uses to protect its own confidential information of a like nature;

(ii) limit disclosure to those persons within Recipient’s organization with a need to know and who have previously agreed in writing, prior to receipt of Confidential Information either as a condition of their employment or in order to obtain the Confidential Information, to obligations similar to the provisions hereof;

(iii) not copy, reverse engineer, disassemble, create any works from, or decompile any prototypes, software or other tangible objects which embody the other party's Confidential Information and/or which are provided to the party hereunder; and

(iv) comply with, and obtain all required authorizations arising from, all U.S. and other applicable export control laws or regulations. Confidential Information shall not be used or reproduced in any form except as required to accomplish the purposes and intent of an Order Form or Statement of Work. Any reproduction of Confidential Information shall be the property of Discloser and shall contain all notices of confidentiality contained on the original Confidential Information.

11.3 Exceptions. The parties agree that the foregoing shall not apply to any information that Recipient can evidence:

(i) is or becomes publicly known and made generally available through no improper action or inaction of Recipient;

(ii) was already in its possession or known by it prior to disclosure by Discloser to Recipient;

(iii) is independently developed by Recipient without use of or reference to any Confidential Information; or

(iv) was rightfully disclosed to it by, or obtained from, a third party. Recipient may make disclosures required by law or court order provided that Recipient:

(a) uses diligent efforts to limit disclosure and to obtain, if possible, confidential treatment or a protective order;

(b) has given prompt advance notice to Discloser of such required disclosure; and

(c) has allowed Discloser to participate in the proceedings.

11.4 Injunctive Relief. Each party will retain all right, title and interest to such party’s Confidential Information.  The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate.  Therefore, in addition to all remedies available at law, Discloser shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof.

11.5 Return of Confidential Information. Within thirty (30) days after the date when all Order Forms and SOWs have expired or been terminated, or after any request for return of Confidential Information, each party will return to the other party or destroy all of such other party’s Confidential Information, at such other party’s discretion, and, upon request, provide such other party with an officer’s certificate attesting to such return and/or destruction, as appropriate. Notwithstanding the foregoing, each party may retain additional copies of, or computer records or files containing, the Confidential Information of the other party that have been created by that party’s electronic archiving and back-up procedures, to the extent created and retained in a manner consistent with the Receiving Party's standard procedures.

11.6 Privacy. If Ketryx is a data processor under this Agreement, and in accordance with applicable data protection laws, including but not limited to the EU General Data Protection Regulation (GDPR), Ketryx agrees that it will:

11.6.1 process personal data controlled by Customer when authorized by the Customer and in compliance with this Agreement and will not use or process the personal data for purposes other than those permitted by the Customer, anticipated by the Documentation for the Offerings, or for the purpose of research and development of Ketryx’s Offerings;

11.6.2 adopt and maintain appropriate (including organizational and technical) security measures in processing Customer’s personal data in order to protect against unauthorized or accidental access, loss, alteration, disclosure or destruction of such data, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing;

11.6.3 take all reasonable steps to ensure that:

(i) persons employed by it, and

(ii) other persons engaged at its place of work, are aware of and comply with applicable data privacy laws and regulations;

11.6.4 provide Customer access to a list of current sub-processors that may handle personal data at Ketryx’s direction.

11.6.5 Ketryx may process or otherwise transfer any personal information in or to any country outside of the country of origination, including such countries with less restrictive data protection laws, to the extent necessary for the provision of the Offerings. If required and where applicable, Ketryx will enter into mutually agreed-upon country-specific data transfer mechanisms, and Ketryx has entered into the EU Standard Contractual Clauses as approved by the European Commission, to help ensure an adequate level of data protection for any personal data that will be processed or transferred. Ketryx does not react to Do Not Track signals because there is no standard for how those signals are sent; and

11.6.6 Customer agrees it is responsible for obtaining any applicable consents from data subjects for Customer’s use of Ketryx to process Customer’s data.

12. Term and Termination

12.1 Term. The Agreement will become effective on the Effective Date and will continue in effect for a period of one (1) year (the “Initial Term” of the Agreement). This Agreement will renew for additional periods of one (1) year each (each, a “Renewal Term” and together with the Initial Term, the “Term” of the Agreement) unless either party notifies the other of its intent not to renew this Agreement by giving the other party notice of non-renewal no later than sixty (60) days prior to the end of the then-current Term. The term of each Order Form or Subscription will be as set forth below or in the applicable Schedule, and the term of each SOW will be as set forth in the applicable SOW; provided that the term of any such Order Form or Subscription shall continue in effect notwithstanding the expiration of the Agreement Term, and these Terms of Service shall continue to govern the Order Form.

12.1.1 Order Forms; Subscriptions. The term of each Order Form or Subscription will begin on or shortly after the Order Effective Date and will continue in effect for the period of time stated in the Order Form (the “Initial Subscription Term”).  Unless otherwise stated on the Order Form, an Order Form or Subscription will automatically renew after its Initial Subscription Term for additional periods of one (1) year each (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”), unless either party notifies the other of its intention not to renew that Subscription at least sixty (60) days prior to the expiration of the then-current Subscription Term.  If Customer terminates a Subscription for convenience before the end of the then-current Subscription Term, Customer will pay any remaining fees owing for the remainder of the then-current Subscription Term within thirty (30) days of the effective date of termination.

12.1.2 Professional Services; Statements of Work. Professional Services and D&I Services described on an Order Form will be provided at mutually agreed-upon times, and will continue until complete, unless otherwise terminated as set forth herein. The term of each SOW will be as set forth in that SOW. If no term is expressed in an SOW, then the term of that SOW will begin on the SOW Effective Date and continue until the Professional Services or D&I Services described in that SOW are complete or the SOW is earlier terminated as set forth herein.

12.2 Termination for Material Breach. Either party may terminate any Order Form or SOW upon written notice of a material breach of the applicable Order Form or SOW by the other party as provided below, subject to a thirty (30) day cure period.  

12.3 Effect of Termination. Termination or expiration of any Order Form or SOW will not be deemed a termination or expiration of any other Order Forms or SOWs in effect as of the date of termination or expiration, and these Terms of Service and the Agreement will continue to govern and be effective as to those outstanding Order Forms and SOWs until those Order Forms and SOWs have expired or terminated by their own terms or as set forth herein.  The provisions of Section 4 (Fees and Payment), Section 6 (Intellectual Property), Section 7.5 (Disclaimer of Warranties), 9 (Limitation of Liability), 10 (Compliance with Law), 11 (Confidential Information), and 13 (Miscellaneous), and all accrued payment obligations, shall survive the termination of all Order Forms and SOWs and the relationship between Ketryx and Customer.

13. Miscellaneous

13.1 Assignment. Customer may not assign any Order Form or Statement of Work, or any rights or obligations thereunder, in whole or in part, without Ketryx’s prior written consent, and any such assignment or transfer shall be null and void.  Ketryx shall have the right to assign all or part of an Order Form or Statement of Work without Customer’s approval.  Subject to the foregoing, each Order Form and Statement of Work shall be binding on and inure to the benefit of the parties’ respective successors and permitted assigns.

13.2 Entire Agreement. This Agreement, along with any Order Form, Statement of Work and the Schedules attached hereto is the entire agreement of the parties with respect to the Offerings and supersedes all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter thereof. 

13.3 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.

13.4 Governing Law. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of [Delaware] and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act.  Any legal suit, action or proceeding arising out of or relating to the Offerings, the Ketryx Materials, this Agreement, an Order Form or a Statement of Work will be commenced exclusively in a federal or state court in Delaware, and each party hereto irrevocably submits to the jurisdiction and venue of any such court in any such suit, action or proceeding.

13.5 Independent Contractors. The parties are independent contractors.  Nothing in these Terms, any Order Form or any Statement of Work shall be construed to create a partnership, joint venture or agency relationship between the parties.  

13.6 Notices. All notices required to be sent hereunder shall be in writing, addressed to receiving party’s current business contact, if known, with a cc: to the General Counsel/Legal Department of the receiving party, and sent to the party’s address as listed in this Agreement, or as updated by either party by written notice.  Notices shall be effective upon receipt and shall be deemed to be received as follows:

(i) if personally delivered by courier, when delivered;

(ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address; or

(iii) by electronic mail if acknowledged.

13.7 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under the laws of any jurisdiction, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect.

13.8 Third Party Rights. Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.

13.9 Waiver. The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach.

EXHIBIT A
Support Terms; Service Levels

Support Services includes Ketryx’s identification, diagnosis, and correction of errors by help desk technicians ("Support Services"). Ketryx will provide Support Services involving direct communication with Customer representatives, whom Customer shall pre-identify. Customer may purchase enhanced support services separately at Ketryx’s then current rates. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

Customer must report incidents to Company. Once a case is reported, Company begins measuring response time. For High Severity (Severity 1 or 2) Incidents as described below, the Customer must call Company support immediately so that the process of verifying the Incident can begin. First Response Time for Severity 1 or 2 Incidents begins upon the call made to Company support.

Exceptions to the support availability requirement include: (a) acts or omission by Customer to extent such act, omission, access or use does not strictly comply with this Agreement or the Documentation; (b) Customer’s Internet connectivity; (d) a Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Ketryx or its subcontractors pursuant to this Agreement; or (f) scheduled Downtime.

Severity Level
Description
Target First Response Time

1

A critical Incident that results in a complete system outage or major application failure and prevents Ketryx from performing critical Ketryx Product functions that have immediate impact upon development, configuration or scanning of Customer Software. There is no workaround available.

1 hour

2

A serious Incident that prevents the execution of a critical Ketryx Product function, causing disruption of the operation of such Ketryx Products. It causes serious impact in the processing of Ketryx Products and there is no acceptable workaround.

4 hours

3

An Incident that does not prevent the execution of a critical Ketryx Product function and does not impact data integrity. The problem may be reasonably circumvented using an available workaround.

3 business days

4

An inquiry and/or low-impact process issue. Examples include cosmetic defects  on screens, errors in documentation, or an enhancement request.

5 business days

Ketryx shall make the Ketryx Products available, as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), at least 99.5% of the time, excluding only the time the Ketryx Products are not Available solely as a result of one or more Exceptions (the “Availability Requirement”).  “Available” means the Ketryx Products are available and operable for access and use by Customer and its users over the Internet in full conformity with the Documentation.