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Last Modified: 3/14/2024
These General Terms (“Terms”) are entered into as of the Effective Date, by and between Kaz Inc., d/b/a Explo, a Delaware corporation (collectively with its Affiliates, “Explo”), and the customer party to the applicable Order Form, Services Agreement and/or Customer Specific Terms (“Customer”). These General Terms shall apply to each Order which references these Terms and shall be deemed to be incorporated by reference therein. Explo and Customer are each referred to herein as a “Party” and collectively as the “Parties”.
a. Order. Explo will make available to Customer an Explo service as set forth in the applicable Order Form, or other form of ordering document (each, an “Order”). The Explo service may consist of ongoing analytics services (“Analytics Services”) and/or related professional services, including, as applicable, installation and configuration services (“Professional Services”) (the Analytics and Professional Services referred to collectively as, the “Services”), which shall be specifically set forth in the applicable Order, and any applicable Documentation made available by Explo. Each Order incorporates and is subject to these Terms. All Orders are subject to the terms therein as expressly agreed to by the Parties and shall control over any provisions herein.
b. Changes in Scope. If the Parties wish to modify, expand, or change the scope of any Order (a “Change”), the Change requires a mutually agreed upon amendment of the applicable Order, detailing the Change and any other relevant information that enables the Parties to implement the Change. No Change shall be considered authorized unless Explo and Customer have executed an amendment to the applicable Order, and the terms of such amended Order shall control over any terms in the Order or these Terms.
c. Third Party Services. Each party acknowledges and agrees that certain of the Services to be provided under these Terms may be provided to Customer by a third party (“Third Party Provider”) designated by Explo (collectively, “Third-Party Services”). Such Third-Party Services are solely between Customer and Third-Party Provider and by signing this Agreement, Customer expressly acknowledges and agrees that such Third-Party Services are subject to terms and conditions of the Third-Party Provider and are not part of these Terms. Explo not warrant or support the Third-Party Services and is not responsible or liable for such Third-Party Services.
Each Order will specify its duration (each an “Initial Order Term”). The termination of any Order shall not otherwise affect this Agreement or any other Order. Upon expiration of the Initial Order Term or Renewal Term, as applicable, the Order will automatically renew for an additional twelve (12) month term (each, a “Renewal Term”) unless Explo or Customer provide notice of non-renewal no less than thirty (30) days prior to the expiration of the then-current term (the Initial Order Term and each Renewal Term collectively, the “Order Term”).
a. Charges. Customer agrees to pay for the Explo Services the charges as set forth in the applicable Order (“Charges”). Unless otherwise set forth in an applicable Order, payment of all Charges shall be due of the Effective Date of the applicable Order. Customer will pay interest on all pastdue sums at a rate which is the lesser of one and a half percent (1.5%) per month, or the highest rate allowed by law. Explo may increase the Charges for any Renewal Term, unless otherwise specifically set forth in the applicable Order.
b. Taxes. Customer shall add to each invoice and Customer shall pay any sales, use, excise, value-added, gross receipts, services, laborrelated, consumption and other similar taxes or surcharges, however designated, that are levied by any taxing authority in connection with the provision or use of Explo Services under these Terms. If, at any time during the applicable Order Term, Explo believes that it is required by law to collect any new or additional taxes for which Customer would be responsible for paying, Explo shall notify Customer of such taxes, collect such taxes directly from Customer and remit such taxes to the appropriate governmental authority. If any taxing authority determines at any time that Explo has incorrectly determined any tax liability regarding taxes for which Customer is responsible pursuant to these Terms, Explo shall have the right to invoice Customer for such taxes determined by such taxing authority to be due and owing.
c. Payment Disputes. If Customer reasonably disputes any of the Charges due under any invoice (the “Disputed Amount”), it shall pay the undisputed portion of the invoice in accordance with the provisions of Section 3.a. and submit a written claim setting out the reasons for disputing the Disputed Amount. All written claims must be submitted to Explo within fifteen (15) days after the date of the invoice to which it relates, otherwise Customer will be deemed to agree to such Charges and Explo will not be subject to adjusting charges or invoices. The Parties shall use all reasonable efforts to settle the dispute. In the event that the dispute is resolved in favor of Explo, Customer shall immediately pay the Disputed Amount to Explo together with applicable interest calculated in accordance with Section 3(a). In the event that Customer does not pay and does not dispute a payment in accordance with this Section 3(c), Explo may suspend the provision of the Explo Services in whole or in part until payment default has been remedied.
a. Explo Services. Explo will provide the Services to Customer on the terms of these Terms for the period set forth in the applicable Order or until otherwise terminated in accordance with the terms of these Terms. Subject to these Terms and the applicable Order, Explo grants to Customer a nonexclusive, nontransferable right to access and to use the Services identified on the applicable Order and any related user guides made available by Explo (“Documentation”) solely for the purpose of conducting its business operations (“Customer’s Business”). Customer may allow Affiliates to access and use the Services for Customer’s Business as long as Customer ensures that such access and use is in accordance with the terms of these Terms. Any new Services Explo makes available to its Customers after the Effective Date may be provided pursuant to a mutually agreed upon Order. For purposes of these Terms, “Affiliate” means a person that directly or indirectly controls, is controlled by or is under common control with a Party. For purposes of this definition, “control” means the power to direct the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
b. Maintenance and Support. As part of the Analytics Services and provided Customer is current on all applicable fees, Explo will provide support services as part of the Analytics Services. To the extent applicable to the Explo Services, Customer will install any maintenance releases provided by or on behalf of Explo promptly upon receipt. Customer agrees to provide and maintain Customer systems as reasonably required by Explo to provide the Explo Services. Explo shall not be liable for any failure to perform (or any delay in performing) any of its obligations under these Terms or Order if the failure or delay results from Customer’s failure or delay in performing any of its obligations set forth in these Terms or applicable Order. Explo shall not be liable hereunder for any claims resulting from Customer’s failure to maintain the Explo Services as required by Explo.
Customer’s access and use of the Explo Services is subject to the following use rights and restrictions:
a. Use Restrictions. Customer shall not take any of the following actions with respect to the Explo Services: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create, attempt to create, or permit, allow or assist others to create, the source code or the structural framework for part or all of the Explo Services or otherwise disrupt the features, functionality, integrity, or performance of the Explo Services (including any mechanism used to restrict or control the functionality of the Explo Services); (ii) cause or permit any use, display, loan, publication, transfer of possession, sublicensing or other dissemination of the Explo Services, in whole or in part, including as a service bureau, to or by any third party without Explo’s prior written consent; (iii) cause or permit any change to be made to the Explo Services or Documentation without Explo’s prior written consent; (iv) bypass or breach any security device or protection used for or contained in the Explo Services; or (v) use the Explo Services for purposes of benchmarking or conducting competitive analysis of the Explo Services or developing, using or providing competing software products or services. Customer shall promptly notify Explo if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of the Explo Services. Customer, in connection with its use of the Explo Services, shall be solely responsible and liable for all activity of any person that Customer grants access to the Explo Services (collectively, the “Users”).
b. Acceptable Use. Customer shall not, and shall ensure that no Users are permitted to: (i) use the Explo Services to store or transmit any content, including Customer Content, that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; (ii) upload to, or transmit from, the Explo Services any data, file, software or link that contains or redirects to a virus, Trojan horse, worm, or other harmful component; (iii) attempt to gain unauthorized access to the Explo Services, or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Explo Services; (iv) use, or otherwise access in connection with Customer’s use, the Explo Services in any manner that is not in accordance with applicable laws and government regulations; or (v) copy the Software, except as otherwise provided for specifically in a mutually agreed upon Order for backup and archival purposes.
c. Passwords. Customer is responsible for the security and proper use of all passwords relating to the Services and must take all necessary steps to ensure that each password is kept confidential, secure, used properly in accessing the Software and not disclosed to any party other than an authorized user of Customer.
d. Suspension of Explo Services. Customer acknowledges and agrees that Explo may temporarily suspend Customer’s access to the Services for a violation of this Section 5 or any other violation of the terms of these Terms that may have an adverse effect on the Services. Explo will provide advance written notice to Customer, to the extent possible under the circumstances, of its intent to suspend the Services. The suspension will continue until Customer has resolved any violation to Explo’s satisfaction.
a. Explo Services. As between Customer and Explo, Explo retains all right, title and interest in and to the Services and Documentation. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect any of Explo’s rights or interests therein or any other Explo intellectual property, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Services, including all Software and Documentation, not expressly granted in these Terms are reserved by Explo.
b. Customer Content. Customer shall retain all right, title and interest in and to, and all intellectual property rights in, Customer records, data and information provided by Customer in connection with the Services (the “Customer Content”). Customer hereby grants Explo a limited, worldwide, royalty-free, non-exclusive license to access, use, reproduce, electronically distribute, transmit, display, store, archive, index and create derivative works of Customer Content for the purpose of providing the Services to Customer and supporting Customer’s use of the Services. Explo may also use Customer Content for the limited purpose of improving and developing the Explo products and services generally, provided that, when doing so, Explo shall only use Customer Content in an anonymized and aggregated way. Customer is solely responsible for Customer Content that Customer and its Users upload, publish, display, link to, or otherwise make available via the Services.
Explo will provide the Services pursuant to its privacy policy located at https://www.explo.co/legal/privacy-policy (the “Privacy Policy”), incorporated herein by this reference.
Customer shall indemnify, defend and hold Explo and its officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (i) Customer systems and Customer Content; (ii) a claim relating to any service offered by Customer to third parties; and (iii) any breach by Customer of Sections 4, 5 and 7 of these Terms.
Explo shall indemnify, defend, and hold Customer harmless from any claim brought against Customer and adjudicated to a final non-appealable judgement by a court of competent jurisdiction to the extent it is based on a third-party claim that the Services as delivered by Explo infringe a United States copyright or a United States patent issued as of the Effective Date of this Agreement (“IP Claim”). Explo will have no indemnity obligation or other liability hereunder arising from: (i) Customer’s negligence, breach of this Agreement or alteration of the Services; (ii) Customer systems or Customer Content; (iii) combination of the Services with Customer systems or any materials, products or services not provided by Explo; or (iv) any third-party products or third-party services. If an IP Claim is or, in Explo’s reasonable determination, is likely to be made, Explo will, at its own expense and sole discretion, exercise one or the following remedies: (x) obtain for Customer the right to continue to use the Services consistent with this Agreement; or (y) modify the Services so it is non-infringing and in compliance with this Agreement. If, in Explo’s reasonable determination, the remedies set forth in subsection (x) and (y) are not available on commercially reasonable terms: (A) Customer shall, at Explo’s request, stop using the allegedly infringing portions of the Services and return any of them (including any copies thereof) in Customer’s possession or control; and (B) Explo may stop performing all allegedly infringing Services, and terminate this Agreement immediately by notice in writing to Customer. The foregoing states the entire obligation of Explo and its suppliers, and the exclusive remedy of Customer, with respect to infringement of proprietary rights.
a. Mutual Representations and Warranties. Each Party represents and warrants that (i) it has full power and authority to execute and deliver these Terms and to perform its obligations under these Terms without any further ratification or approval; (ii) the applicable Order in conjunction with these Terms constitutes the legal, valid and binding obligations of such Party; and (iii) it complies with all federal, state, local and, if applicable, foreign laws, rules and regulations (collectively, “Relevant Law”), including, with respect to Customer, all Relevant Law that pertains to Customer’s operation of its business.
b. Services. Services provided hereunder shall be performed in a workmanlike manner consistent with industry standards. Customer must notify Explo promptly, but in no event more than thirty (30) days after completion of the Services, of any claimed breach of this Section 9(b), Customer’s sole and exclusive remedy for breach of this warranty shall be, at Explo’s option, re-performance of the Services or termination of the applicable Service and return of any prepaid, unused portion of the Service fees for such non-conforming Services.
c. Restrictions. The warranties referenced in this Section 9 do not apply if the Explo Services or any part thereof: (i) have been altered, except by Explo; (ii) have not been installed, operated, repaired, used or maintained in accordance with instructions made available by Explo; or (iii) is acquired by Customer for beta, evaluation, testing, demonstration purposes or other circumstances for which Explo does not receive payment of any charge or fee.
d. Disclaimer. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY. THE FOLLOWING DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: Except for the limited warranties set forth in this Section 9, the EXPLO SERVICES ARE provided “as is” and EXPLO expressly disclaims and excludes all other warranties, whether express, implied, statutory or otherwise, to the fullest extent permissible by Law, including all implied warranties of merchantability, quality, fitness for a particular purpose, or non-infringement and warranties arising from a course of dealing, usage or trade practice. Without LIMITING the foregoing, EXPLO provides no warranty or undertaking and makes no representation of any kind, whether express, implied, statutory or otherwise, that the EXPLO SERVICES will meet Customer’s requirements, achieve any intended results, be compatible or work with any other equipment, software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be errorfree. to the extent permitted by Law, if a warranty condition or term cannot be disclaimed, such warranty, condition or term shall be limited in duration to the applicable express warranty period.
a. No Consequential Damages. EXCEPT AS ARISING UNDER CUSTOMER’S PAYMENT OR INDEMNITY OBLIGATIONS OR ANY LIABILITIES THAT MAY NOT BE WAIVED , NEITHER Party WILL BE LIABLE to the other for any loss or damage, costs or expenses to the extent that the same is or can be characterized as (or arising from): (i) business interruption, loss of profits, loss of production, loss of revenue (excluding Charges under these Terms) or cost of cover; (ii) loss of or corruption to data; (iii) loss of goodwill or injury to reputation; AND/OR (iv) indirect, incidental, consequential, exemplary, punitive or special loss or damages, regardless of the form of action, whether in contract, strict liability or tort.
b. Monetary Cap. total liability TO customer FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THESE TERMS (REGARDLESS OF THE FORM, AND OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) SHALL BE limited TO the amount actually paid to Explo by customer under the ORDER applicable to the event giving rise to such action during the SIX (6) months preceding the relevant incident (or series thereof).
c. Exceptions. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER.
a. Termination for Cause. If a Party materially breaches any provision of these Terms and/or any Order and fails to remedy the breach within thirty (30) days of receipt of written notice from the non-breaching Party, the non-breaching Party may terminate these Terms and/or any Order adversely affected by the breach.
b. Termination in the Event of Bankruptcy. Either Party may terminate these Terms upon written notice to the other Party in the event (i) the other Party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other Party and the petition is not dismissed within thirty (30) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other Party discontinues its business; or (v) a receiver is appointed for the other Party or its business.
c. Effect of Termination. Upon termination, except as required for a Party’s continuing rights hereunder, each Party shall (i) immediately destroy or return to the other Party all of such other Party’s Confidential Information then in such Party’s possession; and (ii) promptly certify to the other Party that it has done so. Termination of these Terms shall operate to terminate all then-outstanding Orders. The termination of these Terms shall not relieve Customer of its liability to pay any amounts due to Explo hereunder. Upon the termination of these Terms, all rights and licenses granted by Explo hereunder shall likewise terminate.
d. Survival. All provisions of these Terms which by their nature should survive termination shall survive termination.
Neither Party shall be liable for delays and/or defaults in its performance (other than Customer’s obligation to pay fees for Services performed) due to causes beyond its reasonable control, including, but without limiting the generality of the foregoing: acts of God or of the public enemy; fire or explosion; flood; stability or availability of the Internet; the elements; telecommunications system failure; war; technology attacks, epidemic; acts of terrorism; riots; embargoes; quarantine; viruses; strikes; lockouts; disputes with workmen or other labor disturbances; total or partial failure of transportation, utilities, delivery facilities, or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control, whether or not similar to the foregoing (each, a “Force Majeure Event”). If any of the events detailed in this Section continue for more than thirty (30) days, either Party may immediately terminate these Terms by providing the other Party with written notice to that effect.
a. Governing Law; Jurisdiction. These Terms shall be governed under the laws of New York without regard for its choice of law principles. The Parties exclude any application to these Terms of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (“UCITA”). Customer agrees that any legal action involving these Terms in any way will be instituted in a court of competent jurisdiction located in the state or federal courts of the United States located in New York, New York, and each Party irrevocably submits to the non-exclusive jurisdiction of such courts.
b. 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 THESE TERMS, ANY COLLATERAL TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
a. Records and Audit. For the Order Term and for one (1) year thereafter, upon reasonable prior written notice, Explo or its designee will have the right to visit the premises of Customer during normal business hours and review their systems as reasonably necessary to determine compliance with this license grant and use restrictions set forth in these Terms. Explo or its designee will use reasonable efforts to avoid unnecessary business disruption during such audit or inspection. If Customer is not in compliance, Customer will correct any failure of compliance including without limitation paying any additional fees that may be due and, if such non-compliance is material, Customer will pay the reasonable costs of the audit.
b. Assignment. Customer may not assign, delegate, or otherwise transfer these Terms or any rights or obligations hereunder (including by merger, consolidation, dissolution, or operation of law, and whether voluntarily or by a Regulatory Body action or order), without Explo’s prior written consent. These Terms binds and inures to the benefit of the Parties and their respective permitted successors and assignees.
c. Notices. Except as otherwise provided in these Terms, all notices, requests, claims and other communications between the Parties described in or otherwise regarding these Terms must be in writing and be given or made (and will be effective on receipt) by delivery in person (including courier service), or by registered or certified mail (postage prepaid, return receipt requested) to a Party at its address specified herein above or at any other address of which that Party has notified the other Party in accordance with this Section.
d. Waiver. No waiver of any of the provisions of these Terms shall constitute a waiver of any other provision of these Terms or a continuing waiver unless otherwise expressly so provided in writing. The failure of either Party to enforce at any time any of the provisions of these Terms shall in no way limit or restrict the rights of that Party with respect to any future breach.
e. Changes. Explo reserves the right to amend these Terms from time to time. Updates shall be posted through Explo’s Web portal.
f. Severability. If any provision of these Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions will remain unaffected and in force. If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever deletion is necessary to give effect to the Parties’ commercial intention.
g. No ThirdParty Beneficiaries. These Terms is for the sole benefit of the Parties and is not intended to, nor shall it be construed to, create any right or confer any benefit on or against any third party.
h. Publicity. Customer agrees to allow Explo to use its name, logo and/or trademarks in connection with Explo’s marketing materials for promotional and public dissemination purposes.
i. Entire Terms. These Terms, the Privacy Policy, DPA and BAA (as applicable), and all executed Orders constitute the complete integrated agreement between the Parties concerning the subject matter contained in these Terms. All prior and contemporaneous agreements, understandings, negotiations, or representations, whether oral or in writing, relating to the subject matter of these Terms are superseded and canceled in their entirety. In the event of a conflict between the terms of these Terms, Exhibits and Orders, the order of precedence (with the first being the controlling) is: (i) the applicable Order (including its attachments); and (ii) these Terms.
j. Independent Contractors. The Parties are independent contractors and shall not be considered an employee, agent, joint venturer, or partner of the other. Nothing in these Terms shall be interpreted or construed as creating or establishing the relationship of employer and employee between the Parties. Neither Party shall have the power or authority to bind or obligate the other.
k. Counterparts. The Parties may execute Orders in one or more counterparts (by original, electronic, or facsimile signature), each of which when executed is an original counterpart and all of which taken together constitute one and the same agreement. A Party’s delivery to the other Party of an original counterpart to an Order in accordance with this Section or as a scanned image (such as a .pdf file) attached to an email to the other Party’s authorized representative is effective as delivery of that counterpart.
