Acceptance of Terms
These Terms and Conditions shall apply to Customer’s use of Knightsbridge Wireless Communications’ proprietary IoT platform, tailored engineering R & D solutions and engineering support services (collectively, the “Engineering Solution “) either identified in one or more ordering documents signed by the parties (each an “Order“) or, if there is no Order executed by the Customer than upon its access and/or use of the Engineering Solution. Customer’s execution of an Order referencing these Terms and Conditions and/or access or use of the Engineering Solution shall be deemed Customer’s agreement to these Terms and Conditions. These Terms and Conditions and all Orders (collectively referred to as the (“Agreement “) represent the parties’ entire understanding regarding the Engineering Solution and shall govern over any different or additional terms of any purchase order and no terms included in any such purchase order shall apply to the Engineering Solution unless such different terms are stated specifically in a mutually signed Order. All capitalized terms not defined herein shall have the meanings attributed to such terms in the Order. Upon its access and/or use of the Engineering Solution, Customer acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. If Customer does not agree to any of the terms below, Knightsbridge Wireless Communication (hereafter referred to as KWC) may be unwilling to grant Customer access to the Engineering Solution. If Customer is unwilling to accept all of the terms of this Agreement, it should not use the Service and it should exit the Service. Customer declares that by acceptance of this Agreement and/or by using the Engineering Solution it is of legal age to form a binding contract with Knightsbridge Wireless Communications. If Customer is accepting this Agreement on behalf of a company or other legal entity, Customer represents and warrants that it has the authority to bind such entity to the terms and conditions contained herein. Customer may not use the Engineering Solution and may not accept this Agreement if it is an entity and/or person barred from receiving the Engineering Solution under the laws of the country in which it is a resident or from which it uses the Engineering Solution. KWC may update or modify the Engineering Solution from time to time. If, in Knightsbridge Wireless Communications’ reasonable judgment, any such modification to the Service materially reduces the Service functionality, KWC will endeavor to inform Customer via the e-mail address associated with Customer’s Account no less than fourteen (14) days prior to such change. Customer’s continued access and/or use of the Service following such changes or modifications shall be deemed to be Customers acceptance of the revised Engineering Solution.
Subject to Customer’s compliance with the terms and conditions of the Agreement and payment of all applicable fees, KWC shall provide Customer with the Engineering Solution, during the term of this Agreement for the purpose of optimizing production through advanced data analytics.
1. For the purpose of providing the Engineering Solution, Customer support and for analyzing and improving the service, KWC will be entitled to use the Customer Data.
2. The term “Customer Data” shall mean Customer’s name, logo, trade dress, trademark or service mark, the files or attachments submitted to KWC by Customer as part of the Engineering Solution, files created by Customer with the use of the Engineering Solution, data provided by Customer to KWC in order for KWC to provide its Engineering Solution behavior analytics, as well as the account and contact information submitted to KWC by Customer (if any).
3. KWC shall maintain appropriate administrative, physical, and technical safeguards designed to protect the security of the Engineering Solution and Customer Data.
4. KWC acknowledges that, as between Customer and KWC, Customer owns all rights, title and interest in the Customer Data. KWC acknowledges that nothing in the Agreement shall be construed to convey to KWC any rights in any copyrighted material of Customer.
5. Customer warrants and represents to KWC that Customer possesses all rights required to lawfully provide the Customer Data to KWC and allow KWC to perform the Engineering Solution in connection therewith, and further warrants and represents that Customer Data and/or the display of and access to such materials do not infringe upon, misappropriate, or otherwise violate any intellectual property, proprietary, privacy or other rights of any third parties.
6. Without derogating from any of KWC’s rights and remedies under the Agreement and/or under law, KWC will be entitled to immediately discontinue the Engineering Solution or any part thereof in the event of any alleged infringement, misappropriation or violation of any rights of any third parties in connection with the Customer Data.
7. Customer acknowledges and agrees that KWC has no obligation to review any of the contents of Customer Data provided to KWC for inaccuracy or completeness, or for the potential violation of any third-party rights.
Term and Termination
1. The Agreement shall commence as of the date set forth in the Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the term stated in the Order. Except as otherwise specified in an Order, after the Initial Term, the Agreement shall be automatically renewed for additional terms equal to the Initial Term, unless one Party notifies the other Party in writing of its intent not to renew the Agreement, at least forty-five (45) days prior to the expiration of the Initial Term or any Renewal Term.
2. Either Party may terminate this Agreement if the other Party breaches any material term or condition of the Agreement and such breach is not remedied within thirty (30) days after receiving written notice thereof. Notwithstanding the foregoing, KWC may immediately, by written notice to Customer, suspend or terminate the Agreement if Customer fails to make any timely payment of fees owed to KWC or in case of breach and/or failure to comply with any of the provisions of Sections 1 (“Engineering Solution”), 7 (“Intellectual Property Ownership”).
3. Either Party shall have the right to immediately terminate the Agreement, upon written notice, in the event the other Party files a petition in bankruptcy or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or discontinues its business or has a receiver appointed for its business and such receiver is not discharged within ninety (90) days.
4. Effects of Termination. Upon termination of the Agreement, (i) the Recipient shall cease to use and shall either destroy or return to the Discloser any Confidential Information of the Discloser in the Recipient’s possession.
5. Survival. Termination of the Agreement shall not affect any provision of the Agreement which is expressly or by implication intended to come into force or continue in force on or after the termination.
Intellectual Property Ownership
1. The Engineering Solution, including but not limited to all materials, any computer software (in object code and source code form), data or information employed by KWC pursuant to the Agreement, and any know-how, methodologies, equipment, or processes used by KWC to provide the Engineering Solution, including without limitation all patent, copyright, trade secret and any other proprietary rights therein and any other deliverables provided by it hereinunder, are and shall remain the sole and exclusive property of KWC.
2. Customer agrees to provide KWC with feedback concerning the functionality and performance of the Engineering Solution, from time to time, as reasonably requested by KWC, including, without limitation identifying potential errors, enhancements and improvements. Any feedback, suggestions, ideas or other inputs that Customer provides KWC in connection with the Engineering Solution may be freely used by KWC to improve or enhance KWC’s products and Engineering Solution and, accordingly, all rights to such improvements and/or enhancements, howsoever arising, including as a result of any ideas, inputs or information provided by Customer as aforesaid, shall vest solely with KWC.
Each party hereto (“Recipient“) shall keep any confidential and proprietary information provided by the other party (“Discloser“), the intellectual property rights detailed above, and any information regarding and/or relating to each of the above, which (i) if in written, recorded, electronic, graphical or other tangible form, is marked as confidential and/or proprietary or with a similar legend or other notation denoting the confidential nature of the information or the proprietary interest of the Discloser therein; or (ii) if disclosed orally, is identified orally as confidential and/or proprietary at the time of disclosure and shall be followed by transmittal of a reasonably detailed written summary of the information provided to the Recipient and labeled as confidential and/or proprietary within thirty (30) days of disclosure (“Confidential Information“), in strict confidence, and shall prevent and protect the Confidential Information of the Discloser from unauthorized disclosure or use. The Recipient shall not disclose any or all of the Confidential Information of the Discloser (including methods or concepts utilized therein) and the results of any tests regarding the Confidential Information of the Discloser to anyone, except to the Discloser, and to the Recipient’s employees who need to know such information under this Agreement. The Recipient shall notify each employee to whom any such disclosure is made that such disclosure is made in confidence and shall be kept in confidence by such employee, and shall ensure that such employee shall be bound, prior to such disclosure, by a confidentiality undertaking with terms not less restrictive in comparison to the terms set forth in this Agreement. Information shall not be considered Confidential Information if such information:
(i) was or hereafter becomes known to the Recipient prior to the disclosure by the Discloser.
(ii) was at the time of disclosure to the Recipient, or subsequently became generally available to the public through no act of the Recipient.
(iii) was received by the Recipient from a third party without restrictions as to disclosure.
(iv) was independently developed by the Recipient without use of the Confidential Information of the Discloser.
(v) required to be disclosed by a court or governmental authority or by applicable law or regulation, provided however, that (a) the Recipient notifies the Discloser of such disclosure, to the extent not limited by law; and (b) to the extent possible, provides the Discloser with the opportunity to oppose the disclosure or obtain a protective order.
Either party may disclose the terms of this Agreement to potential parties to an acquisition or similar transaction to facilitate due diligence and closing of the transaction, provided that the potential party is subject to written non-disclosure obligations and limitations on use only for the prospected transaction. The Recipient acknowledges and agrees that a violation of any of the Discloser’s proprietary rights, including without limitation, violation of the confidentiality undertakings in this Agreement, may cause significant harm to the Discloser, that monetary damages would be inadequate, and that the Discloser will be irreparably harmed. In the event of such a violation, the Recipient agrees that in addition to any other rights and remedies the Discloser may have, an injunction (whether temporary, preliminary or final) shall be entered in a court of competent jurisdiction against the Recipient upon the request of the Discloser, without bond.
To the maximum extent permitted by applicable law, the Engineering Solution and any information provided under the agreement are provided “as is” and KWC and its affiliates hereby disclaim all warranties and conditions, either express, implied or statutory, including without limitation, any (if any) implied warranties or conditions of merchantability, fitness for a particular purpose, quiet enjoyment or that the Engineering Solution will perform error-free or uninterrupted.
Limitation of Liability
In no event shall KWC or anyone on its behalf be liable for any indirect, consequential, incidental, special or punitive damages of any kind, including without limitation damages for loss of business or profits, business interruption, loss of business information or loss or damages to goodwill, in connection with this agreement regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence), or otherwise, even if KWC has been advised of the possibility of such damages or loss. notwithstanding anything to the contrary herein, under no circumstances will KWC’s total and aggregate liability to customer from all causes of action of any kind, including without limitation contract, tort, negligence, strict liability, breach of warranty, or otherwise, arising out of or related to the agreement, exceed the fees actually paid by customer to KWC for the right to use the Engineering Solution in the twelve (12) months preceding such claim.
Governing Law and Jurisdiction. This Agreement is governed by the laws of California, U.S.A., without application of its principles of conflicts of law. The Parties irrevocably consent to the exclusive jurisdiction of the competent courts in Santa Clara County, California, U.S.A., to adjudicate all disputes arising from or related to this Agreement to the exclusion of the jurisdiction of any other court; however, KWC shall retain the right to institute proceedings, including interlocutory and/or injunctive relief, in any other territory.
Publicity. KWC may identify Customer on KWC’s website(s) and other marketing materials as a user of the Engineering Solution. Upon KWC’s reasonable request, Customer agrees to provide KWC with information regarding its use of the Engineering Solution and cooperate with KWC’s efforts to promote and market the Engineering Solution.
Assignment. Neither party shall transfer, assign or pledge in any manner whatsoever any of its rights or obligations under this Agreement without the prior written consent of the other party, provided however, that a party may assign this Agreement in connection with a merger, acquisition, sale of all or substantially all of its assets or other such corporate reorganization.
Waiver. No waiver of any rights by any party hereto shall be construed as a waiver of the same or any other right at any prior or subsequent time. Furthermore, no waiver or delay on the part of a Party in exercising any power or right hereunder, and no forbearance or indulgence of a party granted to the other party, shall in any way restrict or diminish the full rights and powers of that Party under this Agreement, or operate as a waiver of any breach by a Party of any of the terms or conditions of this Agreement.
Independent Contractor. No agency, partnership, joint venture or employment relationship is or shall be created by virtue of the Engineering Solution and/or the Agreement without first consulting with KWC.
Notices. Any notice provided pursuant to the Agreement shall be in writing and shall be sent by registered mail, or e-mail with notice of receipt requested, or by hand delivery to the addresses of the parties as specified herein. Notices sent to KWC shall be addressed to Knightsbridge Wireless Communications, Inc., and to Customer’s address set forth in the Order, or to the address otherwise designated from time to time in writing by the Parties. All notices will be deemed to have been delivered five (5) business days after being mailed (return receipt requested) if delivered by registered mail, or one (1) business day after delivered by hand or by e-mail (with confirmation of receipt).