Starter Plan Terms and Conditions
THESE KENSU TERMS AND CONDTIONS (“AGREEMENT”) CONTAINS THE TERMS FOR USE FOR THE PRODUCTS AND IS BETWEEN KENSU, INC. (“KENSU”), A DELAWARE CORPORATION HAVING A PLACE OF BUSINESS AT AND THE PARTY AGREEING TO THE TERMS OF THIS AGREEMENT (“CUSTOMER”). FOR CLARITY, NO BOTS OR OTHER AUTOMATED METHODS OF ACCESSING AND ORDER OR THE PRODUCTS IS PERMITTED. BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, CLICKING AN "ACCEPT" OR SIMILAR BUTTON, OR OTHERWISE USING THE PRODUCTS, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. CUSTOMER MAY NOT USE THE PRODUCTS WITHOUT AGREEING TO THIS AGREEMENT FIRST.
1. DEFINITIONS.
"Affiliate" means, with respect to a party, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such party and for clarity, Customer includes its Affiliates.
“Ancillary Software” means software licensed by Kensu to Customer as an agent and that is deployed on machines operated by or for Customer to facilitate operation of the Products.
“Confidential Information” has the meaning set forth in Section 9.
“Control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
“Customer Data” means data, text, and the like that Customer inputs and/or loads into the Products.
“Data Protection Laws” means all applicable legislation with respect to the processing of Personal Data, including but not limited to the California Consumer Privacy Act and the European General Data Protection Regulation (2016/679).
“Documentation” means the description of the Products licensed to by Customer contained in the Products descriptions found at https://www.kensu.io/product/features or its successor website.
“Order” means a Kensu electronic submission form to enable the use of the Products.
"Products" mean any Kensu saas starter product and/or the Data Observability Enablement Program (as described in the Documentation) and the Ancillary Software licensed by Kensu to Customer, together with all Updates, as further described in the Documentation and in an Order.
“Support” has the meaning set forth in Section 8.
"Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
“Term” means the term applicable to each Order for Products, or if no such term period is defined, twelve (12) months, commencing on the Effective Date.
"Updates" means all Products updates and enhancements that Kensu generally makes available at no additional charge to its customers of the version of the Products licensed hereunder who are current in payment of applicable Fees.
"Users" means Customer's and its Affiliates' employees, agents, contractors, and consultants who are authorized by Customer to use the Products.
2. TERMS FOR THE PRODUCTS.
Subject to the terms of the Agreement, Kensu grants Customer and its Affiliates a non-exclusive, non-transferable (except to a successor in interest as permitted hereunder) license to access, use, and install (only for the portions of the Products that are available for download) the Products listed under an Order during the Term. Customer’s right to use the Products is limited to the tier and other restrictions contained in an Order and the Documentation.
3. CUSTOMER RESPONSIBILITIES RELATING TO USE OF THE PRODUCTS.
3.1 As between the parties, Customer is responsible for, (i) all activities conducted under its User logins, (ii) obtaining and maintaining any Customer equipment and any ancillary software and/or services needed to connect to, access, install (only for the portions of the Products that are available for download and/or on-premise installation as determined by Kensu), or otherwise use the Products, and (iii) maintaining the security of its account login name and password. Customer is solely responsible for backing up Customer Data.
3.2 Customer shall use the Products solely for its internal business purposes, in compliance with applicable law, and shall not: (a) resell, sublicense (except, if and when applicable, to its authorized Affiliates listed in the Order), lease, time-share or otherwise make the Products available to any third party; (b) process, send, or store infringing or unlawful material using the Products; (c) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Products or the data contained therein; (d) modify, copy or create derivative works based on the Products; (e) do any "mirroring" or "framing" of any part of the Products, or create Internet links to the Products which include log-in information, user names, passwords, and/or secure cookies; (f) reverse engineer the Products; (g) propagate any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; (h) access or use the Products for the purpose of building a competitive product or service or copying its features or user interface; (i) use the Products, or permit it to be used, for purposes of product evaluation, benchmarking or other comparative analysis intended for publication without Kensu’s prior written consent, or (j) have more than one free account for use of the Products.
3.3 Notwithstanding the grant in Sections 2, 3.1 and 3.2, Customer and its Affiliates acknowledge that the Products includes or may include some software components that are licensed to Customer and its Affiliates under “free software” or “open source” licenses which, among other rights, permit the user to copy, modify and redistribute certain programs, or portions thereof, and/or have access to the source code for such components (“Free Software Licenses”). Kensu shall provide a list of open source components for a particular version of the Products upon Customer’s request. To the extent stated in any applicable Free Software License, the terms of such licenses will apply in lieu of the terms of Sections 2, 3.1 and 3.2. To the extent the terms of any Free Software License prohibit any of the restrictions in this Agreement with respect to such components, such restrictions will not apply to such components.
3.4 From time-to-time, Kensu may provide certain portions of the Products as new, beta-only features (“Beta Features”). Beta Features will be identified to Customer in an Order or Products log-in or landing page, or will otherwise be identified to Customer. Beta Features are provided without any warranties or service levels and Kensu has no liability to Customer for the Beta Features only.
4. OWNERSHIP.
4.1 Customer shall retain all ownership rights in and to all Customer Data passing though or generated by the Products (including the Ancillary Software) and Customer’s Confidential Information. Kensu shall have and retain all ownership rights in the Products and all work developed or created by Kensu during the course of providing Support to Customer (if any). Kensu hereby grants Customer a royalty-free, fully paid-up, nonexclusive, license to use the foregoing on the same terms and conditions as the Products.
4.2 Kensu shall own any suggestions, enhancement requests, recommendations, or other feedback provided by Customer or its Users relating to the operation of the Products.
4.3 No license, right or interest in any Kensu or Customer’s trademark, copyright, intellectual property right, trade name or service mark is granted hereunder.
5. FEES.
5.1 There are no fees for the use of the Products. No credit cards or other payment credential are required.
6. SUPPORT.
Kensu shall provide standard Support via e-mail.
7. WARRANTIES AND DISCLAIMERS.
7.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder.
7.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. KENSU DOES NOT WARRANT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE.
8. INDEMNITY.
8.1 Kensu shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with claims, demands, suits, or proceedings ("Claims") made or brought against Customer by a third party alleging that the use by Customer of the Products as contemplated hereunder infringes the U.S. and/or European intellectual property rights of such third party, provided that Customer (a) promptly gives written notice of the Claim to Kensu; (b) gives Kensu sole control of the defense and settlement of the Claim (provided that Kensu may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Kensu, at Kensu’s cost, all reasonable assistance.
8.2 Kensu may, at its sole option and expense: (i) procure for Customer the right to continue using the Products under the terms of this Agreement; (ii) replace or modify the Products to be non-infringing without material decrease in functionality; or (iii) if the foregoing options are not reasonably practicable, terminate the license for the Products.
8.3 Kensu shall have no liability for any Claim to the extent the Claim is based upon (i) the use of the Products in combination with any other product, service or device not furnished, recommended or approved by Kensu, if such Claim would have been avoided by the use of the Products, without such product, service or device; or (ii) Customer’s use of the Products other than in accordance with this Agreement.
8.4 The provisions of this Section 8 set forth Kensu’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.
8.5. Customer shall defend, indemnify and hold Kensu harmless against any Claims made or brought against Kensu by a third party alleging that the Customer Data infringes the U.S. and/or European intellectual property rights of such third party or arising out of Customer’s use of the Products, provided that Kensu (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Kensu of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
9. CONFIDENTIALITY.
9.1 As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected under this Agreement), the Products, Documentation, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to Disclosing Party.
9.2 Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Notwithstanding the foregoing, Kensu may use, for its business purposes, data generated by the use of the Products in anonymized format. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.
9.3 If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.
9.4 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information as long as it remains confidential and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials containing such Confidential Information.
10. DATA PROTECTION.
Kensu will process all personally identifiable information in accordance with Data Protection Laws.
11. LIMITATION OF LIABILITY.
11.1 IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED ONE HUNDRED DOLLARS.
11.2 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. TERM AND TERMINATION.
12.1 This Agreement commences on the Effective Date and continues until all licenses granted in accordance with this Agreement have expired or have been terminated. This Agreement shall automatically renew for additional one (1) year terms. Upon termination, Customer shall not be permitted to use the Products, Ancillary Software, Updates, and Documentation and Customer shall uninstall the Products (where applicable) and the Ancillary Software.
12.2 A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach of this Agreement when such breach is uncurable or, when it is curable, if such breach remains uncured at the expiration of such period; (ii) immediately upon written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; and (iii) as otherwise provided herein. A party may terminate this Agreement for convenience upon ten (10) days notice. Kensu may also terminate this Agreement if Customer has not used the Products for forty five (45) days.
12.3 The parties’ rights and obligations under Sections 4, 5, 7.3, 8, 9, 11, 12.3, 12.4, and 13 shall survive termination of this Agreement.
12.4 Upon termination, Customer’s account will be deactivated and Kensu will delete all Customer Data at which point, it cannot be retrieved.
13. General
13.1 The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
13.2 Notices shall be in writing, sent using a recognized private mail carrier or the United States Postal Service and effective on proof of delivery.
13.3 Each party may include the other's name and logos in its customer or vendor lists.
13.4 No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by Customer and Kensu. To the extent of any conflict between this Agreement and any other attachment or document incorporated by reference, this Agreement shall prevail unless expressly stated otherwise. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than an Order or statement of work mutually executed expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void. This Agreement, which includes all documents referenced herein, Orders, statements of work and attachments hereto, represents the entire agreement of the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
13.5 No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.
13.6 Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to an event, such as a natural disaster, actions or decrees of governmental bodies or communications line failure, which (i) hinders, delays or prevents a party in performing any of its obligations, and (ii) is beyond the control of, and without the fault or negligence of, such party, and (iii) by the exercise of reasonable diligence such party is unable to prevent or provide against (“Force Majeure Event).
13.7 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8 Each party agrees to comply fully with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Products.
13.9 If Customer is a company formed in Europe as demonstrated by a formation document filed with the applicable European entity, this Agreement will be governed exclusively by the internal laws of Belgium (without regard to its conflicts of laws rule) and any dispute shall be resolved in the courts located in Brussels, Belgium. If Customer is a company formed outside of Europe, this Agreement shall be governed exclusively by the internal laws of the state of California (without regard to its conflicts of laws rule) and any dispute shall be resolved in the courts located in San Francisco County. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.