Effective as of the date set forth on the applicable Order Form
This Master Services Agreement (the "Agreement") is by and between Kovva, Inc., a Delaware corporation with offices located at 3825 Edwards Rd, Suite 103, Cincinnati, OH 45209 ("Kovva"), and the Person executing an Order Form directly or through their authorized agent ("Customer").
This Agreement, including any attachments, exhibits, and schedules hereto, sets forth the terms for certain software and related services you have ordered pursuant to an Order Form. By executing the Order Form, you agree to the terms of this Agreement included here.
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
"Authorized Users" means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
"Confidential Information" has the meaning set forth in Section 9.1.
"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
"Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems, and networks, whether operated directly by Customer or through the use of third-party services.
"Documentation" means any manuals, instructions, or other documents or materials that Kovva provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Kovva Materials.
"Fees" has the meaning set forth in Section 8.1.
"Force Majeure Event" has the meaning set forth in Section 15.9.
"Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm any computer, software, system, or network, or the security, integrity, confidentiality, or use of any data processed thereby; or to prevent Customer or any Authorized User from accessing or using the Services as intended by this Agreement.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Order Form" or "Statement of Work" means the Order Form and any other orders agreed to by the Parties during the Term pursuant to which Kovva agrees to provide access to Services to Customer.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Personal Information" means information that Customer provides or for which Customer provides access to Kovva, or information which Kovva creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual; or (ii) can be used to authenticate an individual. Customer's business contact information is not by itself Personal Information.
"Resultant Data" means data and information related to Customer's use of the Services that is used by Kovva in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
"Services" means the service offering described in an applicable Order Form.
"Specifications" means the specifications for the Services provided by Kovva to Customer.
"Subcontractor" has the meaning set forth in Section 2.5.
"Term" has the meaning set forth in Section 14.2.
"Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Kovva.
"Kovva Materials" means the Services, Specifications, Documentation, and Kovva Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions that are provided or used by Kovva or any Subcontractor in connection with the Services. Kovva Materials include Resultant Data but do not include Customer Data.
"Kovva Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Kovva or any Subcontractor.
"Kovva Systems" means the information technology infrastructure used by or on behalf of Kovva in performing the Services, including all computers, software, hardware, databases, electronic systems, and networks, whether operated directly by Kovva or through the use of third-party services.
2.1 Access and Use. Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, Kovva hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Kovva shall provide to Customer the Access Credentials within a reasonable time following the Effective Date. The total number of Authorized Users will not exceed the number set forth in the applicable Order Form.
2.2 Service and System Control. Except as otherwise expressly provided in this Agreement: (a) Kovva has and will retain sole control over the operation, provision, maintenance, and management of the Kovva Materials; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Kovva Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User.
2.3 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to any Intellectual Property Rights in or relating to the Services, Kovva Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Kovva Materials, and the Third-Party Materials are and will remain with Kovva and the respective rights holders in the Third-Party Materials.
2.4 Changes. Kovva reserves the right, in its sole discretion, to make any changes to the Services and Kovva Materials that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Kovva's services, the competitive strength of or market for Kovva's services, or the Services' cost efficiency or performance; or (b) to comply with applicable Law. Either party may, at any time during the Term, request in writing changes to the Services. No requested changes will be effective unless and until memorialized in a written agreement signed by both parties.
2.5 Subcontractors. Kovva may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").
2.6 Suspension or Termination of Services. Kovva may suspend, terminate, or otherwise deny Customer's or any Authorized User's access to or use of all or any part of the Services or Kovva Materials, without incurring any resulting obligation or liability, if: (a) Kovva receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Kovva to do so; or (b) Kovva believes, in its good faith and reasonable discretion, that Customer or any Authorized User has failed to comply with any term of this Agreement, is involved in any fraudulent, misleading, or unlawful activities relating to the Services, or this Agreement expires or is terminated.
2.7 Usage Data. Kovva may collect, maintain, process and use diagnostic, technical, usage and related information ("Usage Data") for the purposes of evaluating Customer's usage and developing and improving its products and services. Any Usage Data shall be the property of Kovva and Customer shall have no rights to the Usage Data, except as expressly provided by Kovva in a written instrument.
3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Kovva Materials except as expressly permitted by this Agreement. Without limiting the generality of the foregoing, Customer shall not:
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Kovva Personnel with such access to Customer's premises and Customer Systems as is necessary for Kovva to perform the Services; and (c) provide all cooperation and assistance as Kovva may reasonably request to enable Kovva to exercise its rights and perform its obligations under this Agreement.
4.2 Effect of Customer Failure or Delay. Kovva is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a "Customer Failure").
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Kovva of any such actual or threatened activity.
4.4 Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Kovva or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4, Kovva will be entitled to liquidated damages equal to the compensation paid by Kovva to the applicable employee or contractor during the prior six (6) months.
4.5 Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. KOVVA HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
Kovva will provide Customer with support services as set forth in an applicable Order Form or exhibit thereto (the "Support Exhibit"). Such support services are referred to herein as the "Support Services."
7.1 Governing Documents. Customer acknowledges and agrees that its access to and use of the Services is subject to Kovva's Privacy Policy and Data Processing Agreement (the "Data Processing Agreement"). The Privacy Policy is available at kovva.ai/privacy. The Data Processing Agreement is available at kovva.ai/dpa and is incorporated into this Agreement as Exhibit A. Customer's continued use of the Services after any update to these documents constitutes Customer's acceptance of the updated terms.
7.2 Information Security. Kovva will employ security measures in accordance with Kovva's data privacy and security policy as amended from time to time, as set forth in Exhibit A.
7.3 Data Breach Procedures. Kovva maintains a data breach plan in accordance with the criteria set forth in Exhibit A and shall implement the required procedures on the occurrence of a data breach as defined in such plan.
7.4 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Kovva Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials.
7.5 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
8.1 Fees. Customer shall pay Kovva the fees set forth in the Order Form ("Fees") in accordance with this Section 8.
8.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Kovva's income.
8.3 Payment. Unless otherwise indicated in a Statement of Work or Order Form, Kovva shall invoice Customer monthly for Services to be performed, and Customer agrees that all invoices shall be due within thirty (30) days of receipt of such invoice. Customer shall have thirty (30) days from receipt of any invoice to dispute such invoice; if no dispute is raised by Customer, Customer shall forego any right to dispute such invoice.
8.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) Kovva may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Customer shall reimburse Kovva for all costs incurred by Kovva in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, Kovva may suspend performance of the Services until all past due amounts and interest thereon have been paid.
8.5 No Deductions or Setoffs. All amounts payable to Kovva under this Agreement shall be paid by Customer to Kovva in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
8.6 Fee Increases. Kovva may increase Fees by providing written notice to Customer at least sixty (60) calendar days prior to such increase, and the Order Form will be deemed amended accordingly.
8.7 Audits. Kovva or its nominee may, on seven (7) days' notice, inspect and audit Customer's use of the Services under this Agreement at any time during the Term and for one (1) year following the termination or earlier expiration of this Agreement. All audits will be conducted during regular business hours, no more frequently than once in any 12-month period, and in a manner that does not unreasonably interfere with Customer's business operations. If the audit determines that Customer's use of the Services exceeded the usage permitted by this Agreement, Customer shall pay to Kovva all amounts due for such excess use, plus interest as calculated pursuant to Section 8.4.
9.1 Confidential Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). "Confidential Information" means any information disclosed by either Party in written, graphic, oral, visual or physical form, including Personal Information (if any), technology, know-how, designs, processes, inventions, software, codes, programs, financial or business information, customer and/or supplier information, computer software, or any other data, plans or other records and information, whether or not specifically designated as Confidential Information. All Customer Data shall be Confidential Information of Customer; the Kovva Materials, Documentation, Feedback, and Usage Data shall be Confidential Information of Kovva.
9.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed; (b) was or becomes generally known by the public other than by the Receiving Party's noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party not under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
9.3 Protection of Confidential Information. The Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under this Agreement; (b) not disclose or permit access to Confidential Information other than to its Representatives who need to know such Confidential Information and are bound by written confidentiality and restricted use obligations at least as protective as the terms set forth in this Section 9; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (d) ensure its Representatives' compliance with the terms of this Section 9.
9.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that is legally required to be disclosed.
9.5 Return. Upon expiration or termination of this Agreement, and upon the request of a Party, each Party will return or sanitize the other Party's Confidential Information in accordance with industry standards.
9.6 Relief. Each Party acknowledges and agrees that any unauthorized use or disclosure of the other Party's Confidential Information will cause irreparable damage to the Disclosing Party, that monetary damages would be an inadequate remedy, and that the Disclosing Party shall be entitled to seek temporary and permanent injunctive relief to restrain any such unauthorized disclosure or use.
10.1 Kovva Materials. All right, title, and interest in and to the Kovva Materials, including all Intellectual Property Rights therein, are and will remain with Kovva. Customer has no right, license, or authorization with respect to any of the Kovva Materials except as expressly set forth in Section 2.1. All other rights in and to the Kovva Materials are expressly reserved by Kovva. Customer hereby unconditionally and irrevocably grants to Kovva an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
10.2 Customer Data. As between Customer and Kovva, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3.
10.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Kovva, its Subcontractors, and the Kovva Personnel to enforce this Agreement and exercise their rights and perform their obligations hereunder.
10.4 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Kovva suggesting or recommending changes to the Services, Kovva Materials, or Documentation, including without limitation, new features or functionality ("Feedback"), Kovva is free to use such Feedback irrespective of any other obligation or limitation between the Parties. Customer hereby assigns to Kovva all right, title, and interest in, and Kovva is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback.
11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party.
11.2 Kovva Warranties. Kovva represents, warrants, and covenants to Customer that Kovva will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
11.3 Customer Warranties. Customer represents, warrants, and covenants to Kovva that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Kovva and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
11.4 Remedial Efforts. If Kovva breaches, or is alleged to have breached, the warranties set forth in Section 11.2, Kovva shall, at its sole expense, re-perform the Services which are subject of the breach. This shall constitute Customer's sole remedy, and Kovva's sole liability, under the warranties set forth in Section 11.2.
11.5 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND KOVVA MATERIALS ARE PROVIDED "AS IS." KOVVA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, KOVVA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR KOVVA MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS."
12.1 Kovva Indemnification. Kovva shall indemnify, defend, and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors, and permitted assigns (each, a "Customer Indemnitee") from and against any and all Losses incurred by a Customer Indemnitee resulting from any Action by a third party that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party's US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from Customer Data, Third-Party Materials, modification of the Kovva Materials other than by or on behalf of Kovva, failure to timely implement modifications made available by Kovva, negligence or misuse by Customer, or use outside the purpose, scope, or manner authorized by this Agreement.
12.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Kovva and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "Kovva Indemnitee") from and against any and all Losses incurred by such Kovva Indemnitee resulting from any Action by a third party that arises out of or relates to: (a) Customer Data, including any processing of Customer Data or Personal Information by Kovva on behalf of Customer in accordance with this Agreement; (b) any other materials or information provided by or on behalf of Customer or any Authorized User; (c) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (d) negligence or more culpable act or omission by Customer, any Authorized User, or any third party on behalf of Customer in connection with this Agreement.
12.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2. The party seeking indemnification (the "Indemnitee") shall cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent.
12.4 Mitigation. If any of the Services or Kovva Materials are, or in Kovva's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, Kovva may, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and Kovva Materials as contemplated by this Agreement; (b) modify or replace the Services and Kovva Materials to seek to make them non-infringing, while providing materially equivalent features and functionality; or (c) if none of the foregoing are reasonably available, terminate this Agreement in its entirety effective immediately on written notice to Customer, in which event Kovva shall promptly refund to Customer, on a pro rata basis, the share of any license fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.
12.5 SOLE REMEDY. THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND KOVVA'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND KOVVA MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL KOVVA OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS, AND SUBCONTRACTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
13.2 CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN SECTION 13.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF KOVVA AND ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS, AND SUBCONTRACTORS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO KOVVA UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
13.3 Exceptions. The exclusions and limitations in Section 13.1 and Section 13.2 do not apply to amounts or claims arising out of Section 3 (Use Restrictions), Section 7 (Data and Security), Section 9 (Confidentiality), Section 12 (Indemnification), or liability for a Party's gross negligence or willful misconduct.
14.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect until one year from such date (the "Initial Term").
14.2 Renewal Term. This Agreement will automatically renew for additional successive one year terms unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively, together with the Initial Term, the "Term").
14.3 Termination. In addition to any other express termination right set forth in this Agreement, this Agreement and any Order Form or Statement of Work may be terminated: (a) by Kovva, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder and such failure continues more than fourteen (14) days after Kovva's delivery of written notice thereof, or if Customer breaches any of its obligations under Section 3.1, Section 7.4, or Section 9; (b) by either party, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach is incapable of cure or remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or (c) by either party, effective immediately upon written notice, if the other party becomes insolvent, files for bankruptcy, makes a general assignment for the benefit of its creditors, or has a receiver appointed.
14.4 Effect of Termination or Expiration. Upon any expiration or termination of this Agreement: (a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) Kovva shall immediately cease all use of any Customer Data or Customer's Confidential Information and within thirty (30) days return to Customer, or at Customer's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer's Confidential Information, and permanently erase all Customer Data and Customer's Confidential Information from all systems Kovva directly or indirectly controls; (c) Customer shall immediately cease all use of any Services or Kovva Materials and within thirty (30) days return to Kovva, or at Kovva's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Kovva Materials or Kovva's Confidential Information, and permanently erase all Kovva Materials and Kovva's Confidential Information from all systems Customer directly or indirectly controls; and (d) Kovva may disable all Customer and Authorized User access to the Kovva Materials.
14.5 Surviving Terms. The following sections will survive any expiration or termination of this Agreement: Section 3.1, Section 9, Section 11.5, Section 12, Section 13, Section 14.4, this Section 14.5, and Section 15.
15.1 Further Assurances. On a party's reasonable request, the other party shall execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
15.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties.
15.3 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement, or otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, in each case without the prior written consent of the other party; provided, however, that Kovva may, without Customer's consent, include Customer's name and other indicia in its lists of Kovva's current or former customers in promotional and marketing materials.
15.4 Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to the applicable party. If to Kovva: 3825 Edwards Rd, Suite 103, Cincinnati, OH 45209, Attention: Tanja Mimica, Chief Operating Officer, email: tanja@kovva.ai. If to Customer, as set forth in the Order Form. Notices will be deemed effectively given when received by hand with signed confirmation, when received by overnight courier, when sent by email (with confirmation of transmission) during normal business hours, or on the third day after mailing by certified or registered mail.
15.5 Entire Agreement. This Agreement, together with the other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
15.6 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, whether voluntarily, involuntarily, by operation of law, or otherwise, without Kovva's prior written consent. Any purported assignment, delegation, or transfer in violation of this Section 15.6 is void.
15.7 Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control, including acts of God, flood, fire, earthquake, explosion, war, terrorism, government order or law, embargoes, or national emergency (a "Force Majeure Event"). Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
15.8 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio in each case located in the city of Cincinnati and County of Hamilton, and each party irrevocably submits to the exclusive jurisdiction of such courts.
15.9 WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.10 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.1, Section 4.3, or Section 7.4, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages.
15.11 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
15.12 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15.13 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement, and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.
15.14 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
The Data Processing Agreement, incorporated into this Agreement as Exhibit A, is available at kovva.ai/dpa.