KRYOS VELOCITY™ MOBILE PLATFORM LICENSE AGREEMENT
Welcome to Kryos Velocity – a rapid application development platform offered as part of the mobile product suite from Kryos Systems Associates Ltd. for supported mobile communications devices.
Part 1.0 VELOCITY AND THE KRYOS SERVICE
Velocity Mobile Platform™ (“Velocity” and “VMP”) facilitates rapid application development and deployment of existing software applications to the mobile devices it supports including BlackBerry®, Android™platforms, and HTML 5 compliant browsers, together with the Velocity website and user interfaces, including all features and functionalities, and all associated software, content and documentation. Velocity consists of three components working together to deliver existing application functions to the mobile devices it supports including:
Part 2.0 LICENCE GRANT AND RESTRICTIONS
2.1 Licence Grant. Subject to the terms of this Agreement,Kryos hereby grants You a personal, revocable, non-exclusive, royalty free, non-transferable license to install a copy of Velocity for the purposes of developing, testing and debugging and deploying Applications. You may not copy Velocity, Kryos Technology or any portion thereof except as provided by this Agreement.
2.2 Licence Restrictions. Licensee (for itself and on behalf of it’s Representatives) acknowledges and agrees that Youshall not: (a) use the Kryos Technology other than for its own business purposes; (b) use or store any Kryos Technology for any other purpose or in connection with any other Person; (c) copy, reproduce, translate, modify, or adapt any Kryos Technology (or any component or content thereof), except with the prior written consent of Kryos (only to the extent thereof); (d) use any Kryos Technology on, or allow others to use any Kryos Technology on, a server not approved by Kryos; (e) alter, modify, adapt, create derivative works, translate, deface, decompile, disassemble, or Reverse Engineer any portion of any Kryos Technology, or attempt to do so, or permit, acquiesce, authorize or encourage any other party to do the same; and (f) reconstruct, reproduce or discover any source code associated with any Kryos Technology or any underlying ideas, algorithms, file formats or programming interfaces by any means (g) modify, network, lease, sell, loan, sublicense, assign or otherwise transfer or make available to any Person Kryos Technology in whole or in part; (h) use, import, export, re-export Applications or Kryos Technology other than in accordance with the laws and regulations of the of the country(ies) and/or territory(ies) in which the Kryos Technology or the Application is used, imported, exported, re-exported or deployed (as the case may be); and (i) alter any copyright, trademark or patent notice referenced in or through the use of Kryos Technology.
For avoidance of any doubt, You acknowledge that Your License does not include and You are not licensed to develop, market, rent, distribute, transfer, license, sublicense, or furnish any software applications which modify, delete, duplicate or replace all or any material part of the functionality, features or all or any portion of Velocity or the Kryos Technology. You further agree not to engage in any of the aforementioned activities or to attempt to do so using Kryos Technology or the technology of any third party.
Part 3.0 ACCOUNTS, SUBSCRIPTION PRICING AND PAYMENT TERMS
3.1 Subscription Account. You acknowledge and agree that by entering this Agreement, You are creating a Subscription Account with Kryos. You are entitled to access and use Velocity to develop and deploy applications , subject to payment of any applicable tiered Subscription Fees which are based upon the device counts. You agree to provide Kryos with the applicable fees no later than the 1st day of the calendar month of the monthly term following such usage. The obligation to provide Subscription Fees, shall continue to be payable until any balance owing at the time of termination has been paid to Kryos. The amount of such fees and Your access and use of Velocity is subject to device count restrictions and payment of all fees applicable to the device counts for your organization as outlined below:
|Complimentary Subscription Tier Device Count||Paid Subscription Payment Tier Device Counts* (“Subscription Fees”)|
|Number of Devices connected to Licensee Application (“Device Count”)||0-5||6-24||25-99||100-249||250-500||500+|
|Monthly Base Price*||Free||$69.00||$199.00||$699.00||$1399.00||Call Us|
|Additional Monthly Fee / device*||N/A||$9.00||$7.00||$5.00||$4.00|
|*Subscription Fee Pricing is in U.S. funds and may be subject to change at the sole discretion of Kryos.|
3.2 Kryos Monitoring and Notice. By using Velocity You hereby agree that Kryos will monitor the usage of Velocity on any device and Application level to confirm that appropriate Subscription Fees and payments are provided by Licensee. In the event that a particular device count is exceeded from a previous month or when an initial Licensee account set-up exceeding 5 devices, Kryos will generate an email notification (“Kryos Notice”) to the originating subscriber of the Licensee account to advise that the allowable device count has been exceeded and will be advised that You have entered a particular Paid Subscription Payment Tier as outlined in paragraph. 3.1 above. Kryos will provide each Kryos Notice on the first day of the calendar month following the increase in the Licensee’s device count.
3.3 Determining Payment Tier. Subscription Fees owing are based on the highest device count for the previous month. Visit our pricing page on the Velocity website @ http://www.kryosvelocity.com/pricing/ to calculate the cost at each device count level.
3.4 Payment Information. If payment information has not previously been provided or a device count has been exceeded from a previous month’s paid subscription payment tier, a Kryos Notice will be provided outlining the monthly fees required to continue usage. The Kryos Notice will provide a link to PayPal® to process Your payment to Kryos. Through this link you will set up Your PayPal® account and provide authorization to process the monthly payment corresponding to Your device count.
3.5 Consequences of Non-Payment, Non-Provision of Accurate Payment Information or Delayed Payment of Fees. Failure to make prompt payment of Subscription Fees shall result in Licensee being in default under this Agreement and Kryos may: suspend or terminate this Agreement or the Licensee account unless such Licensee has provided and, Kryos has accepted, payment. Kryos reserves the right to disconnect all Licensee-connected devices exceeding the Complimentary Subscription Tier, starting with the most recently connected device(s), to return device count to a maximum of five devices.
3.6 Payment and Payment Processor. Payment must be made through use of PayPal® or such other payment method authorized by Kryos from time to time. You specifically acknowledge that Kryos may use PayPal® and other third party payment processing services in connection with processing Your payments. You consent to the collection and use of Your data and information (including, address and billing and other disclosed personal information) by Kryos and such Kryos authorized payment processing service as necessary to process Your Subscription Fee payments. Kryos reserves the right to change, or to stop accepting, any permitted payment method at any time in its sole discretion. You irrevocably authorize and agree that Kryos or its designated third party payment processor(s) (i.e. PayPal) may process applicable Subscription Fees corresponding with device counts.
3.7 Accuracy of Billing Information. You are solely responsible to keep all of Your information current and accurate in Your account and with any designated payment processor including Your billing, credit card and contact information.
3.8 Billing Statement. We will provide You with an online billing summary statement which You may review, save, and print at Your discretion. This is the only billing statement that will be provided by Kryos.
3.9 Billing Errors and Discrepancies. In the event You believe that Kryos has billed You in error, You must contact Kryos within ninety (90) days of the date of payment processing. No refunds or adjustments will be provided for charges which are more than ninety (90) days old. If You do not advise us within ninety (90) days after the error first appears on Your billing statement we will not be required to correct any error. You hereby release Kryos from all liability and claims of loss resulting from any error that You do not report to us within ninety (90) days after the error first appears on Your billing statement.
3.10 Currency. Pricing is in United States currency. It is Your sole responsibility to reconcile any currency exchange rates with the provider of Your chosen payment method.
3.11 Taxes. All prices exclude any applicable sales, retail, excise or similar taxes. You are fully responsible for any such taxes that You are obligated to pay or which we may collect from You in accordance with applicable laws.
3.12 Interest. Licensee shall pay each billing statement provided by or on behalf of Kryos no later than the first of each calendar month following receipt of such statement. In the event that any payment is not received within such timeframe, Kryos reserves the right to disconnect all Licensee-connected devices exceeding the Complimentary Subscription Tier as outlined in 3.1 above, starting with the most recently connected device(s) (to return device count to a maximum of five devices) and to charge late payment fees (not to exceed 2% per month) for any overdue amounts (in each case, other than charges disputed an in good faith).
3.13 No Refunds. Kryos Subscription Fees are non-refundable. Upon termination of this Agreement, Subscription Fees will cease to be applicable in the calendar month following termination. For the sake of certainty, where a Licensee is in default under this Agreement, the Agreement is terminated, or where notice of termination is provided by either party, all Subscription Fees paid in advance on Your behalf are non-refundable and the Licensee will be responsible for Subscription Fees due up until and including the date of Termination.
Part 4.0 TERM AND TERMINATION
4.1 Term. This Agreement shall be effective upon your agreement to be bound by the terms of this Agreement (as manifested by the conduct described in the first paragraph above) and shall end upon termination of this Agreement in accordance with the provisions outlined herein. Unless otherwise authorized by Kryos, You must destroy all copies and components of Kryos Technology licensed under this Agreement within one (1) week of the termination of this Agreement and You may be required to provide proof of such destruction to Kryos. Upon termination of this Agreement the license shall immediately terminate and You shall promptly stop all use of Kryos Technology.
4.2 Termination by Kryos. Notwithstanding section 4.1 above Kryos reserves the right to terminate this Agreement or suspend any product or service provided under this Agreement at any time for any reason by providing thirty (30) days’ prior notice to the email account that You submitted in connection with Your Subscription or immediately upon the occurrence of any of the following: (i) a failure by to pay any amount when due; (ii) Your breach of any material term of this Agreement; (iii) Your involvement in any activity reasonably likely to materially damage the reputation of Kryos or the usability, functionality or performance of any product or service provided by Kryos to You; (iv) You or any user of a Licensee connected device interferes with Kryos business operations or customer service; and (v) if Kryos is prevented from providing any portion or all of the Kryos Technology by operation of any law, regulation, requirement or ruling issued in any form by judicial, administrative, regulatory or other governmental body having jurisdiction over the Kryos Technology, or otherwise impacting Kryos’ ability to perform any obligation(s) outlined herein.
4.3 Termination by You. You may terminate this Agreement at any time for convenience by deleting Velocity software and Applications from all systems and devices. Notwithstanding the foregoing, You are required to pay all Subscription Fees accrued and owing at the time of termination. Additionally, Kryos shall be entitled to retain any Subscription Fees already paid to Kryos as of the date of termination.
Part 5.0 WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY
This Agreement contains provisions that limit or exclude liability to you. The use of Velocity by or on Your behalf is subject to the Warranty Disclaimers, Limitations of Liability and Indemnity provisions outlined in the Schedule “A” General Terms and Conditions.
Part 6.0 CHANGES
6.1 Authority and Changes to Terms. Kryos reserves the right to make changes to the provisions of this Agreement from time to time. In the event of any such revisions that are material in nature, Kryos will provide You with written notice to the most recent address or email address provided by You or on Your behalf to Kryos and may provide notice of other revisions by posting the revised version of the Agreement at: www.kryosvelocity.com/legal/. Changes to this Agreement to reflect business practices or legal requirements, or changes in legal requirements, shall become effective as of the date Kryos provides notice of such changes to You. All other changes to this Agreement shall become effective ninety (90) days after the date Kryos provides notice of such changes to You in accordance with this paragraph. If You continue to use Velocity or the Kryos Technology after the change becomes effective You shall be deemed to have accepted this change.
6.2 Services, New Releases and Upgrades. Kryos is under no obligation to provide You with any New Releases or Updates. However, Kryos may, at its sole discretion enhance, delete or modify the features, format, characteristics, functionality, or the procedures to use Velocity, the information available to You through use of Kryos Technology and may provide Upgrades or updates provided that such changes will not adversely affect the use of Kryos Technology by You. If You determine that such a change is not acceptable, Your sole and exclusive remedy will be your right to terminate this Agreement pursuant to section 4.3 above. If Kryos does provide any New Releases or Updates, they shall be subject to the terms and conditions of this Agreement (including the License) or such agreement, if any, which accompanies such New Release(s) or Update(s), including a possible requirement to make payments to Kryos in respect thereof.
General Terms and Conditions
“Agreement” means Parts 1.0 through section 6.2 of the License Agreement and sections 1.0 through 9.11 of these General Terms and Conditions;
“Applications” means: (a) software applications, or portions thereof developed using Kryos Technology for use with supported mobile devices and related connectors and/or synchronization code distillers and the like. Notwithstanding the foregoing, in no event shall Applications include any software applications, or portions thereof, that modify, delete, duplicate or replace all or any material part of: (a) the functionality, or features, of all or any portion of Velocity or the Kryos Technology;
“Authorized User” or “You” and “Your” means Licensee;
“Complimentary Subscription Tier” refers to the payment tier outlined in paragraph 3.1 of the License Agreement involving the use of no more than 5 supported mobile devices;
“Device User” means a Person using unique device using an application developed through use of Velocity and the Kryos Technology by or on behalf of Licensee;
“Intellectual Property” means any and all patents, designs (including industrial design rights), copyrights, trade marks and trade names, business processes, formulae, know-how, trade secrets and confidential information, integrated circuit topographies, computer programs, source code and documentation (whether in paper, electronic or other format), and all other analogous intellectual property or intangible proprietary rights, which may subsist anywhere in the world, whether registered or unregistered, including all applications for registration of same, registrations where available of any such intellectual property rights at either a national, regional or international level, all rights to file such applications and continuations, derivations or divisions thereof, and all reissues and re-examinations of any such registrations;
“Kryos” means Kryos Systems Associates Ltd. addressed at #120 3553 31 Street NW Calgary, AB, Canada;
“Kryos Technology” means, collectively: (i) Velocity; (ii) any systems, tools, technology, software code (source code and object code), technical information, know-how, confidential information, processes, advice, documentation, technical notes, reports, system and user manuals, guides and specifications conceived, created, developed, acquired, licensed to or controlled by Kryos; (iii) all improvements, enhancements, modifications, overlays, functional changes, corrections, upgrades and derivative works of the foregoing items (i),(ii), and (iii) and (iv) all intellectual property rights relating to the foregoing;
“Open Source License” means any license which requires, as a condition of use, modification, and/or distribution of any software subject to such license that such software or other software incorporated into, integrated with, derived from and/or distributed with such software be: (i) disclosed or distributed in source code form; (ii) licensed for the purposes of making modifications or derivative works; (iii) permitted to be Reverse Engineered; (iv) reproduced and/or redistributed at no or minimal charge; and/or (v) used only for non-commercial purposes.
“Person” shall include an individual, corporation, body corporate, general partnership, limited partnership, syndicate, joint venture, association, trust or unincorporated organization or any trustee, executor, administrator or other legal representative;
“Representative” means any director, officer, shareholder, employee, consultant, agent, contractor, partner, affiliate or subsidiary of a party to this Agreement, and includes any directors, officers or employees of any such consultant, agent, contractor, affiliate or subsidiary;
“Reverse Engineer” means, without limitation, any act of reverse engineering, translating, disassembling, decompiling, decrypting or deconstructing data, software (including interfaces, protocols, and any other data that may or may not technically be considered software code), service, or any method or process of obtaining or converting any information, data or software from one form into a human-readable form;
“Subscription Fee” means the currently applicable fee referenced in paragraph 3.1 above that a Licensee must pay to Kryos;
“Licensee” means the Person obtaining a license from Kryos to use Kryos Technology for the purposes of developing and deploying Applications for use on supported mobile devices (i.e. BlackBerry® and Android™ smartphones) and for the use of such Applications;
“Support Services” means technical support for Licensed Software, as described in Article 4.0 of this Schedule “A” and as provided under the policies of Kryos in effect on the date Support Services are requested;
“Updates” means bug fixes, service packs, hot fixes, updates, upgrades enhancements, modifications, and new releases or versions of Velocity;
“Velocity” has the definition given in Part 1.0 of the main body of the Agreement;
2.0 LICENSEE RESPONSIBILITIES
In addition to the terms of the License Grant and Licensee Restrictions outlined above, You are responsible for all activities with respect to the Application or the use of Kryos Technology undertaken by or on Your behalf (including, without limitation, by Your Representatives and any others who may use or access Application) and You will ensure that:
(a) You will only use the Kryos Technology in accordance with this Agreement, all applicable laws and regulations, and the documentation (if any) provided by Kryos as part of and for use in conjunction with the Kryos Technology and any products, services or content available through Your Applications and their intended uses shall comply with all applicable laws and regulations;
(b) You will only use Kryos Technology for lawful purposes and You will not utilize Kryos Technology for fraudulent or illegal purposes in Your jurisdiction or any jurisdiction in which the Application(s) is/are distributed;
(c) You are over the age of majority and You have the right and authority to enter into this Agreement, either on Your own behalf or on behalf of a company or other entity and to authorize payment of appropriate Subscription Fees outlined in this Agreement;
(d) Any information that is provided to Kryos or a third party payment processor in relation to this Agreement is true, accurate, current and complete;
(e) You will not knowingly undertake, develop or distribute Applications or make any products, services or content available through Your Applications, which contain functionality that could be used for inappropriate or improper purposes or interfere with the proper operation of, degrade, cause damage to or adversely affect any software, hardware, services, system, network or data used by any person including Kryos or any of their customers or products or services, and You will immediately cease any such activity upon Kryos delivering notice of same to You;
(f) Applications and any products, services or content made available through Your Applications, do not, and will not contain any: (i) virus, Trojan horse, worm, backdoor, shutdown mechanism, malicious code, sniffer, bot, drop dead mechanism, or spyware; or (ii) any other software, code, or program that is likely to or is intended to: (A) have an adverse impact on the performance of, (B) disable, corrupt, or cause damage to, or (C) cause or facilitate unauthorized access to or deny authorized access to, or cause to be used for any unauthorized or inappropriate purposes, any software, hardware, network, services, systems, or data (“Malware”). If You become aware of the existence of any Malware in or relating to Your Applications, You shall promptly notify Kryos;
2.4 Suspension. Kryos may suspend, cancel or otherwise limit Your access to Kryos Technology if there is suspicion of fraudulent or illegal activity, abuse, misuse, error, or sharing a Licensee Account among multiple Persons whom are not Licensee Representatives.
2.4 Unauthorized Access. You agree to immediately notify Kryos in writing of any loss, unauthorized disclosure or actual or suspected unauthorized use of Your Licensee account or Application.
3.1 Escrow. Within a reasonable period of time from the Effective Date, Kryos will place source code for the Kryos-developed portions of Velocity (and related comments to the extent developed) in escrow with a commercial third-party software escrow provider, and will update such deposit with new releases of source code from such Kryos-developed portions promptly upon releasing any update or upgrade to Velocity. At the option and expense of a Licensee, Kryos shall enroll and maintain such Licensee as a beneficiary under Kryos' agreement with such escrow provider, to the extent available under the terms of the agreement between Kryos and such third party. Upon request, Kryos will advise Licensees of benefits available from such third party escrow provider and, to the extent possible, may make commercially reasonable efforts to facilitate the acquisition by Licensees of such. Any agreement that Kryos enters into with a third party escrow provider shall ensure that, at a minimum, source code will be released to Licensees in the event of the occurrence of any of the following conditions ("Release Conditions"):
(i) Kryos ceases to be in the business of providing maintenance and support for Velocity with no successor-in-interest, or
(ii) The existence of any of the following conditions, uncorrected for more thanninety (90) days: the making by Kryos of a general assignment for the benefit of creditors, the appointment of a general receiver or trustee in bankruptcy of Kryos’ business or property, or action by Kryos under any provincial or federal insolvency or similar law for the purpose of its bankruptcy or liquidation.
The occurrence of an event described in this subsection (ii) will not constitute a Release Condition if, within the specified ninety (90) day period, Kryos (including its receiver or trustee in bankruptcy) provides to You adequate assurances, reasonably acceptable to You, of its continuing ability and willingness to fulfil all of its maintenance and support obligations hereunder.
Where You obtain source code pursuant to this section, You shall have a license to use same to the extent necessary to maintain and support Velocity so as to continue to obtain the benefit for which You have contracted under this Agreement, and for no other purpose.
4.0 SUPPORT SERVICES
Licensee acknowledges that Kryos has no obligation, express or implied, to provide support or maintenance for any unpaid use of Kryos Technology (i.e. for use in connection with a Complimentary Subscription Tier as outlined in Section 3.1 above). Support Services and terms and conditions of such support are at the sole discretion of Kryos. The following support services are provided for Users whose device count is not high enough to impose payment obligations to Kryos. Additional support services may be provided where Your device count exceeds five.
(a) Telephone Support from 9 AM to 5 PM MST.
(b) Documentation for Velocity, including recommended best practices.
(c) 24x7 Access to Vendor product support forums online at http://kryossupport.com, and we guarantee a 24 hour acknowledgement of all emails submitted.
Support Services will be provided in accordance with the Kryos Support Services policies in effect on the date Support Services are requested.
5.0 PRIVACY AND CONFIDENTIALITY
5.2 No Control. You acknowledge and understand that Kryos does not monitor, control, or have any knowledge of, the content of any communication(s), information or data uploaded, downloaded or otherwise disseminated through use of an Application or the use of Kryos Technology by You or Your Representatives. The content of such communication(s), information or data is entirely the responsibility of the person from whom such content originated. Kryos will not be liable for any type of communication, information or data, or the accuracy or sufficiency of the content thereof, which is uploaded or disseminated through accessing or utilizing an Application, Velocity or the Kryos Technology.
5.3 Data Security and Integrity. You shall have sole responsibility for the accuracy, currency, quality, integrity, legality, reliability, and appropriateness of Your Application, Your data and information and Kryos shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store, monitor or transmit any data, communication(s) or information. Kryos shall not be responsible for adequate security, archival and/or back-up procedures on Your behalf.
5.4 Kryos Security. Kryos will use commercially reasonable efforts to maintain the security of Velocity and the Kryos Technology including, without limitation, constructing and maintaining firewalls and security devices to limit unauthorized access to information. Kryos and You each will take commercially reasonable precautions to avoid introducing into the other’s computers any “computer virus,” “trojan horse,” “worm,” “virus” or other malicious computer code. Except in accordance with the limited license granted in Part 2.0 hereof, You may not upload, download, modify, disassemble, decompile or copy Kryos Technology or otherwise undertake (directly or indirectly) any action that may affect the use or functionality of Velocity or the Kryos Technology.
5.6 Customer Satisfaction and Licensee Testimonial. You hereby acknowledge and agree that Kryos may contact You to determine Your satisfaction with Kryos Technology for the purpose of improving Kryos products and services. In some circumstances, Kryos may request Your consent that Your name, company information and experience be presented and distributed publicly as part of the promotion and advertisement of Kryos Technology. Where we make such a request, You agree not to charge any fee or request any consideration to Kryos in exchange for such consent. No promotional material, press release, advertisement or case study shall be issued by Kryos which includes Your name, company name or logo, etc. without Your prior written approval.
5.7 Confidentiality. You acknowledge and agree that the Kryos Technology (including without limitation information accessible by means of the Kryos Technology) was developed at considerable time and expense by or on behalf Kryos and contains valuable trade secrets and confidential information of Kryos. Accordingly, You agree to maintain the Kryos Technology (including without limitation information, software code and data accessible by means of the Kryos Technology) in strict confidence and except as expressly authorized in the Licence Grant, You: (i) will not disclose or provide access thereto to any person except to Representatives with a need for access to exercise the License granted herein or; (ii) use the Kryos Technology for any purpose not expressly authorized hereby, or permit or authorize any other person to do so. This confidentiality restriction shall not apply to the extent that such information is in the public domain or hereafter falls into the public domain through no fault of Yours. Any combination of trade secrets and information that forms part of the Kryos Technology shall not be deemed to be public merely because individual parts of the Kryos Technology are in the public domain, unless the combination itself is in the public domain.
6.0 INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership Rights. Licensee, for itself and on behalf of it’s Representatives, acknowledges and agrees that:
(a) Kryos Technology (including, without limitation, all web pages, sub-domains and functionality of Velocity, Kryos Technology, any website operated by Kryos, any applicable development platforms made accessible through use of Velocity, and any and all Intellectual Property rights therein), and any and all copies thereof made by the Licensee or the Licensee’s Representatives, are the sole and exclusive property of Kryos and that all title and interest therein shall at all times remain with Kryos;
(b) Kryos owns and shall own all right title and interest in and to Kryos, the Kryos Logo and all trade names, trade-marks, and service marks used in connection with Kryos Technology;
(c) all improvements, enhancements, modifications, overlays, functional changes, corrections and upgrades to the Kryos Technology and any derivative works of the Kryos Technology (and any and all Intellectual Property rights therein) (collectively referred to herein as “Kryos Technology Improvements”) whether created by the Licensee itself or by the Licensee’s Representatives, are the exclusive property of Kryos as soon as they come into existence and are deemed to be Kryos Technology. Licensee (for itself and on behalf of it’s Representatives) hereby grants to Kryos all right, title and ownership in and to Kryos Technology Improvements;
(d) nothing in this Agreement transfers any intellectual property rights to, or vests any such rights, in any Person other than Kryos. You are only entitled to the limited licensed use of the rights granted in this Agreement;
(e) You will not take any direct or indirect action to jeopardize, limit or interfere with Kryos’ intellectual property rights (including, without limitation, those referencing Kryos Technology Improvements). Any unauthorized use of Velocity or the Kryos Technology is a violation of this Agreement and may be a violation of intellectual property laws and treaties, including, without limitation, copyright laws and trade-mark laws.
6.2 Further Assistance. Upon reasonable request of Kryos, Licensee shall, and shall cause its Representatives to, at any time before or after termination of this Agreement and at Kryos’ expense, execute appropriate documents and do everything else reasonably necessary to complete or otherwise evidence the transfer of ownership rights in and to the Kryos Technology Improvements, including Intellectual Property rights therein, to enable Kryos to secure, defend, register or enforce copyright, patent, trade mark or any other proprietary rights in such intellectual property or work product. In consideration of the covenants within this Agreement, the Licensee waives, and the Licensee shall obtain from each of its Representatives a waiver of all moral rights that the Licensee or any of its Representatives may have or acquire in respect of the Kryos Technology Improvements. The Licensee represents and warrants that to the extent that it may be first owner of any intellectual property rights in Kryos Technology Improvements as defined and contemplated herein, including Intellectual Property rights therein, the Licensee has the full unfettered ability to effect an unencumbered transfer of all such rights, and to provide the foregoing waiver of moral rights, and that there are no Licensee Representatives or third parties who might have any exercisable claim or colour of right in respect of any such Kryos Technology Improvements. This section shall survive the expiration or termination of this Agreement.
6.3 Ownership by Third Parties. To the extent that Kryos Technology involve, use or reference third party trade-marks, services mark and other intellectual property rights, all such rights are and shall remain the property of their respective owners.
7.0 WARRANTY DISCLAIMER
7.1 LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES (FOR ITSELF AND ON BEHALF OF ITS REPRESENTATIVES) THAT: (A) THE USE OF VELOCITY AND ANY OTHER KRYOS TECHNOLOGY LICENSED HEREUNDER IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH THE LICENSEE WHETHER REFERENCING KRYOS TECHNOLOGY OR THE APPLICATION. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT, KRYOS MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS TO ANY PERSON WITH RESPECT TO KRYOS TECHNOLOGY, AN APPLICATION OR ANY OTHER PRODUCT OR SERVICE DELIVERED TO YOU. EXCEPT AS SET FORTH ABOVE, KRYOS TECHNOLOGY IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS; (B) KRYOS DOES NOT GIVE ANY WARRANTIES, GUARANTEES, REPRESENTATIONS OR CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ACCURACY, QUIET ENJOYMENT, FUNCTIONALITY OF KRYOS TECHNOLOGY OR ANY SOFTWARE, THE USER INTERFACE, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, COMPLIANCE WITH ANY DESCRIPTION, OF SATISFACTORY QUALITY, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS) WITH RESPECT TO KRYOS TECHNOLOGY AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; AND (C) KRYOS DOES NOT GUARANTEE THE ACCURACY OR TIMELINESS OF SOFTWARE CODE, INFORMATION AND/OR DATA AVAILABLE OR ACCESSIBLE THROUGH USE OF KRYOS TECHNOLOGY NOR THAT KRYOS TECHNOLOGY (INCLUDING ACCESS THERETO) IS AVAILABLE WITHOUT INTERRUPTION OR ERROR FREE OR WITHOUT DISRUPTION OR DELAY. KRYOS DOES NOT WARRANT THAT ANY DEFECTS WILL BE CORRECTED. SINCE KRYOS TECHNOLOGY IS FACILITATED AND/OR TRANSMITTED THROUGH PUBLIC INTERNET AND PUBLIC AND/OR PRIVATE SWITCHED TELEPHONY NETWORK(S) (AS THE CASE MAY BE), YOU UNDERSTAND THAT THERE MAY BE SERVICE DISRUPTIONS OR OUTAGES.
THE PARTIES HEREBY AGREE THAT INTERNATIONAL CONVENTIONS CONCERNING THE SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT OR THE PROVISION OF ANY PRODUCTS OR SERVICES DESCRIBED HEREIN.
THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
8.0 LIMITATION OF LIABILITY AND INDEMNITY
8.1 Liability Exclusion. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE ACKNOWLEDGES (FOR ITSELF AND ON BEHALF OF ITS REPRESENTATIVES) THAT UNDER NO CIRCUMSTANCES SHALL EITHER KRYOS OR ITS REPRESENTATIVES BE LIABLE IN WHOLE OR IN PART (EXCEPT AS PROVIDED IN SECTION 8.2 BELOW) TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, END USERS) FOR ANY DAMAGES, LOSSES OR CLAIMS SUFFERED OR ARISING OUT OF THE ACCESS TO, USE OR THE INABILITY TO ACCESS OR USE KRYOS TECHNOLOGY BY LICENSEE OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION, ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES FOR, WITHOUT LIMITATION THOSE REFERENCING LOSS OF BUSINESS, LOSS OF USE OR DATA INTERRUPTION, LOST PROFITS OR GOODWILL, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION ARISING OUT OF OR IN ANY WAY RELATED TO KRYOS TECHNOLOGY OR THIS AGREEMENT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS AGAINST YOU OR KRYOS AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OR OF ANY LIMITED REMEDY.
8.2 MAXIMUM LIABILITY. NOTWITHSTANDING THE FOREGOING, THE AGGREGATE LIABILITY OF KRYOS FOR ALL CLAIMS OF ANY KIND WHETHER BASED IN CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, OR RESULTING IN CONNECTION WITH KRYOS TEHNOLOGY, THIS AGREEMENT, FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY SERVICES COVERED OR FURNISHED UNDER THIS AGREEMENT, WILL IN NO CASE EXCEED THE AMOUNT, IF ANY, PAID BY YOU UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE CLAIM AROSE.
8.3 INDEMNITY. YOU HEREBY AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS AND FOREVER DISCHARGE KRYOS, ITS REPRESENTATIVES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING, WITHOUT LIMITATION, THOSE OF THIRD PARTIES REFERENCING LICENSEE’S USE OF KRYOS TECHNOLOGY OR A LICENSEE DEPLOYED APPLICATION), DEMANDS, ACTIONS, PROCEEDINGS, LIABILITIES, JUDGMENTS, PENALTIES WHETHER CIVIL OR CRIMINAL, TAXES, AND ALL COSTS, LIABILITIES AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL FEES) ARISING OUT OF OR RELATING TO YOUR USE OF KRYOS TECHNOLOGY OR YOUR DEVELOPED OR DEPLOYED APPLICATIONS OR THAT MAY OTHERWISE BE INCURRED BY KRYOS ARISING OUT OF, OR RELATING TO, YOUR USE OF KRYOS TECHNOLOGY, YOUR VIOLATION OF THIS AGREEMENT, THE MISUSE OR ILLEGAL USE OF AN APPLICATION, KRYOS TECHNOLOGY, APPLICABLE LAW OR RIGHTS OF ANY THIRD PARTIES (INCLUDING INTELLECTUAL PROPERTY RIGHTS), YOUR FAILURE TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS, ANY ERRORS IN ANY DATA OR INFORMATION SUPPLIED TO KRYOS (INCLUDING ANY THIRD PARTY PAYMENT PROCESSOR), OR YOUR GROSS NEGLIGENCE OR WILFUL MISCONDUCT.
8.4 Risk Allocation. You acknowledge and agree that the provisions of Articles 7 and 8 are fair and reasonable in the commercial and administrative circumstances of this Agreement, that they are reflected in the pricing set by Kryos and that such covenants are an inducement to enter into this Agreement, which each party has relied upon.
9.1 Independent Contractors; Non-Exclusive. There is no agency, partnership, joint venture or other joint relationship between the parties and neither party will have any authority to bind or commit the other.
9.2 Assignment and Sublicense Prohibited. You may not assign, delegate, sublicense, transfer or subcontract the whole or any part of this Agreement or the rights granted hereunder without the prior written consent of Kryos. Notwithstanding the foregoing, Kryos may, at its sole discretion, assign this contract or any of its rights hereunder to any third party, without giving prior notice.
9.3 Modifications to Agreement. Kryos reserves the right to modify this Agreement at any time at its sole discretion by providing such revised Agreement to You together with or as a new Velocity release or update and by publishing the revised Agreement on a Website operated by Kryos. You are responsible for periodically reviewing such amendments to this Agreement and are deemed to be aware of such amendments. If You do not agree to the amended terms and conditions, You shall immediately stop using Velocity, the Application and any related Kryos Technology. Your continued use of Velocity, an Application or the Kryos Technology shall constitute Your acceptance to be bound by the revised Agreement. No supplement, modification, amendment, or waiver not expressly provided by Kryos shall be binding on Kryos unless agreed to by Kryos in writing.
Kryos reserves the right to adjust Velocity or the Kryos Technology at any time in order in order conform to legal and/or regulatory obligations or requirements as determined by Kryos at its sole discretion.
9.4 Severability. Each provision of this Agreement is intended to be severable and if any provision is determined by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such provision shall be severed from this Agreement and will not affect the legality or validity or enforceability of the remainder of this Agreement or any other provision hereof and the Agreement shall be construed, as nearly as possible, to reflect the intentions of the severed provision(s) to the extent possible under applicable law.
9.5 Waiver. No delay on the part of Kryos in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
9.6 Governing Law and Jurisdiction. This Agreement and any transactions contemplated by this Agreement shall in all respects, be construed according to, and the rights and liabilities of the parties hereto shall in all respects be governed exclusively by, the laws of the Province of Alberta, Canada without reference to the principles of conflicts of law. You irrevocably submit and attorn to the exclusive jurisdiction of the courts of the Province of Alberta, Canada with respect to any adjudication of rights hereunder, without regard to its conflict of laws provisions. You agree to waive any right You may have to: (i) trial by jury; or (ii) commence or participate in any class action against Kryos related to Velocity or Kryos Technology or this Agreement and, where applicable, You also agree to opt out of any class proceedings against Kryos or its licensors.
9.7 Force Majeure. Kryos shall be excused for any delay or failure to fulfill its obligations under this Agreement due to causes beyond its control, including but not limited to, telecommunication service outages, satellite outages, weather conditions, natural disasters, acts of government, acts of terrorism (foreign or domestic), labour strikes of other entities, acts of war, civil disturbances or court order.
9.8 Notices. All notices, requests and other communications required or permitted to be given under this Agreement except those specifically permitted to be given by e-mail or posted on a website operated by Kryos, must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by express mail, private courier, email or facsimile to the party to whom such notice is required or permitted to be given. Any such notice will be considered to have been given when received, or if mailed, five business days after it was mailed, as evidenced by the postmark. Your mailing address or electronic mail address for notice shall be the address You provided to Kryos in association with Your account. You are solely responsible for keeping Your contact information current.
9.9 Enurement. This Agreement shall inure to the benefit of and be binding upon You and Kryos and each party’s successors and permitted assigns.
9.10 Additional Agreements. Your use of Kryos Technology may require you to enter into one or more additional agreements. This Agreement and such additional agreements are intended to be correlative, complementary and mutually explanatory of one another. However, in the event of a conflict, inconsistency or ambiguity between the terms of any additional agreement and the terms of this agreement, the terms of such additional agreement shall prevail unless expressly stated otherwise in such additional agreement.
9.11 Entire Agreement. This Agreement, together with the Non-Disclosure Agreement, constitutes the entire agreement between Kryos and the Licensee with respect to the subject matter referred to herein and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of Kryos and the Licensee. There are no representations, warranties, covenants, conditions or other agreements, express or implied, collateral, statutory or otherwise between Kryos and the Licensee in connection with the subject matter of this Agreement, except as specifically set forth in this Agreement. Kryos and the Licensee have not relied and are not relying on any other information, discussion or understanding (whether arising from the other, its Representatives or otherwise) in entering into and completing the transactions contemplated by this Agreement.
© Kryos Systems Associates Ltd., 2012, Canada. Kryos, the Kryos Logo and Velocity are the trade-marks of Kryos Systems Associates Ltd. and may not be used without permission.
BY CLICKING “REGISTER” YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. IN CONSIDERATION OF KRYOS AGREEING TO PROVIDE YOUR ACCESS AND USE OF VELOCITY, THE KRYOS SERVICE AND ANY APPLICATION, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE ABOVE TERMS AND CONDITIONS, CLICK “EXIT” AND YOU WILL NOT BE AUTHORIZED TO USE VELOCITY.