1. DEFINITIONS.

Capitalized terms will have the meanings set forth in this section, or in the section in which they are otherwise defined.

1. 1.1 “Access Protocols”
   

   means any passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures that enable Customer or Authorized Users to access the Platform.

2. 1.2 “Applicable Laws”
   

   means all applicable laws, statutes, ordinances, regulations, rules, and self-regulatory guidelines.

3. 1.3 “Authorized User”
   

   means any individual employee, agent, or contractor of Customer accessing or using the Platform solely on behalf and for the benefit of Customer in the operation of Customer’s business, whether such individual is a Named User or a Concurrent Session.

4. 1.4 “Access Model”
   

   means the basis on which Customer’s access to, and use of, the Platform is licensed and measured for purposes of calculating the Fees, as specified in the applicable Order Form, being either the Named User Model or the Concurrent Session Model.

5. 1.5 “Concurrent Session Model”
   

   means an Access Model under which Customer’s access to the Platform is limited to the Concurrent Session Limit specified in the applicable Order Form, rather than to a fixed number of Authorized Users.

6. 1.6 “Concurrent Session Limit”
   

   means the maximum number of Sessions that may be active and in use on the Platform by Customer and its Authorized Users at any single point in time, as specified in the applicable Order Form.

7. 1.7 “Named User Model”
   

   means an Access Model under which Customer’s access to the Platform is limited to the number of Authorized Users specified in the applicable Order Form, regardless of the number of Sessions active at any given time.

8. 1.8 “Concurrent Session”
   

   means, at any given point in time, a Session that is active and associated to an Authorized User, up to the maximum number of simultaneous Sessions specified in the applicable Order, regardless of the identity of such Authorized User.

9. 1.9 “Customer Content”
   

   means any content, data, software, operating system images, and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services, including any Customer-Supplied Software.

10. 1.10 “Customer-Supplied Software”
    

    means any operating system image, software application, container image, or other software environment provided or uploaded by Customer or its Authorized Users for use within the Platform.

11. 1.11 “Documentation”
    

    means Company’s then-current manuals for the Platform and made generally available by Company to its customers.

12. 1.12 “Intellectual Property Rights”
    

    means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

13. 1.13 “Order Form”
    

    means an order form signed by both Parties that incorporates these Terms by reference.

14. 1.14 “Party”
    

    means each of Company and Customer (together, the “Parties”).

15. 1.15 “Platform”
    

    means the Kasm Workspaces software-as-a-service platform made available by Company, as further described in the Documentation and the applicable Order Form, that provides containerized, browser-based workspace streaming, including virtual desktops, browser isolation, and application streaming, accessible by Authorized Users (under the Named User Model) or through permitted concurrent Sessions (under the Concurrent Session Model), in each case as specified in the applicable Order Form and subject to the applicable Access Model. For the avoidance of doubt, the Parties acknowledge and agree that the Platform does not include any software applications and just includes the container which shall be configured by the Customer to include Customer Content.

16. 1.16 “Services”
    

    means the services provided by Company to Customer under this Agreement as set forth in an Order Form, including provision of the Platform and any support services provided by Company.

17. 1.17 “Session”
    

    means a single instance of an Authorized User’s access to a workspace through the Platform, beginning when the workspace is provisioned and ending when the Authorized User logs out or the session is otherwise terminated.

18. 1.18 “Session Data”
    

    means all data, files, and content created, modified, or stored within a Session, excluding Customer Content that has been saved to Customer’s designated persistent storage (if any) prior to the end of the Session.

2. PROVISION OF SERVICES.

1. 2.1 Access.
   

   Subject to Customer’s timely payment of the Fees, Company will provide Customer with access to the Platform in accordance with the Access Model specified in the applicable Order Form. On or as soon as reasonably practicable after the Effective Date, Company will provide to Customer the necessary Access Protocols to allow Customer and its Authorized Users to access the Platform. Customer will use reasonable efforts to prevent unauthorized access to, or use of, the Platform, and notify Company promptly of any such unauthorized use known to Customer. Customer will be solely responsible for any unauthorized use of the Platform using Customer’s or any Authorized Users’ Access Protocols, including any Fees incurred in connection therewith. Customer is responsible for providing Company with any Customer-Supplied Software that it desires to deploy through the Platform.

2. 2.2 Access Permissions.
   

   Authorized Users shall have access to Customer’s instance of the Platform in accordance with Company’s then-current functionalities and features and, in each case, subject to the Access Model specified in the applicable Order Form, as follows: (a) if the Order Form specifies the Named User Model, Customer may designate and provide Access Protocols to up to the number of Authorized Users set forth in the Order Form, and Company may require any additional or replacement Authorized User designations to be submitted in accordance with Company’s then-current procedures; or (b) if the Order Form specifies the Concurrent Session Model, Customer may permit any number of individuals to be designated as Authorized Users, provided that the number of Sessions active on the Platform at any single point in time will not exceed the Concurrent Session Limit set forth in the Order Form. If Customer or its Authorized Users attempt to exceed the number of Authorized Users permitted under the Named User Model, or to initiate a Session in excess of the Concurrent Session Limit under the Concurrent Session Model, Company may, without liability, prevent or block the applicable additional access (including by declining to provision an additional Authorized User or by preventing an additional Session from starting) until Customer has increased the applicable limit under an amended or additional Order Form and any associated incremental Fees have been agreed. Customer acknowledges and agrees that Customer is solely responsible for all activity that occurs on behalf of its Authorized Users’ accounts or other means of access to the Platform, and for such Authorized Users’ compliance with this Agreement. Customer shall prevent unauthorized access to, or use of, the Services (including the Platform) and notify Company promptly of any such unauthorized access or use known to Customer.

3. 2.3 Support Services.
   

   Subject to the terms and conditions of this Agreement, Company will use commercially reasonable efforts to (a) provide technical support for the use of the Platform to Customer, and (b) keep the Platform operational and available to Customer, in each case in accordance with its then-current standard policies and procedures.

4. 2.4 Compliance.
   

   Customer is solely responsible for ensuring that Customer’s and its Authorized Users’ use of the Platform complies with Applicable Laws. Company has the right, but not the obligation, to monitor Customer’s and its Authorized Users’ compliance with this Agreement and all Applicable Laws. If Customer or any Authorized Users are using the Platform in any manner not in compliance with this Agreement, it shall be deemed a breach by Customer of this Agreement.

5. 2.5 Security.
   

   During the Term, Company will use commercially reasonable measures, including technological security measures customary to the industry, that are designed to ensure the security of the Platform and all Customer Content contained therein.

6. 2.6 Acceptable Use Policy.
   

   Customer and its Authorized Users shall not use the Platform to: (a) violate any Applicable Law or regulation; (b) attack, probe, scan, penetrate, or attempt to gain unauthorized access to any third-party system, network, application, or data; (c) obscure the origin of network traffic for malicious, fraudulent, or unlawful purposes; (d) distribute malware, viruses, or other harmful code; (e) engage in any activity that could damage, disable, overburden, or impair the Platform or interfere with any other party’s use of the Platform; (f) transmit, store, or process any content that is unlawful, defamatory, harassing, threatening, or that infringes or misappropriates any third party’s Intellectual Property Rights; or (g) use the Platform in any manner that could expose Company to liability or reputational harm. Customer is responsible for ensuring that all Authorized Users comply with this section.

7. 2.7 Suspension.
   

   Company may immediately suspend Customer’s or any Authorized User’s access to the Platform if Company reasonably determines that Customer or any Authorized User has violated Section 2.6, any license restriction, or is using the Platform in a manner that threatens the security or integrity of the Platform or any third-party system. Company will use commercially reasonable efforts to notify Customer promptly of any suspension and the reasons therefor. Suspension will not relieve Customer of its payment obligations under this Agreement.

3. INTELLECTUAL PROPERTY.

1. 3.1 License Grant.
   

   Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable license during the Term, solely for Customer’s internal business purposes and in accordance with the limitations (if any) set forth in any Order Form, (a) to access and use the Platform in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Platform. Customer may permit Authorized Users to access and use the features and functions of the Platform as contemplated by this Agreement.

2. 3.2 Restrictions.
   

   Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Platform or Documentation, except as expressly allowed herein; (b) modify, adapt, alter, or translate the Platform or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer, or otherwise allow the use of the Platform or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or attempt to derive the source code of the Platform, except as permitted by applicable mandatory law; (e) interfere in any manner with the operation of the Platform or the hardware and network used to operate the Platform; (f) modify, copy, or make derivative works based on any part of the Platform or Documentation; (g) access or use the Platform or Documentation to build a similar or competitive product or service; (h) attempt to access the Platform through any unapproved interface; or (i) otherwise use the Platform or Documentation in any manner that exceeds the scope of use permitted under this Agreement or in a manner inconsistent with Applicable Laws, the Documentation, or this Agreement. Customer will not remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Company or its licensors on the Platform or any copies thereof.

3. 3.3 Ownership.
   

   The Platform and Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers. All rights in and to the Platform and Documentation not expressly granted to Customer in this Agreement are reserved by Company and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Platform, Documentation, or any part thereof.

4. 3.4 Feedback.
   

   Customer hereby grants to Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use in any manner or medium and for any purpose, including to incorporate into the Services, any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including Authorized Users.

4. FEES AND EXPENSES; PAYMENTS.

1. 4.1 Fees.
   

   In consideration for the access rights granted to Customer and the Services performed by Company under this Agreement, Customer will pay to Company the fees set forth in the applicable Order Form (the “Fees”), which will be calculated based on the Access Model and corresponding number of Authorized Users or Concurrent Session Limit, as applicable, specified in the Order Form. Company may modify the Fees payable hereunder upon written notice to Customer at least sixty (60) days prior to the end of the then-current Term.

2. 4.2 Payment.
   

   Unless otherwise provided in the Order Form, Fees are due and payable within thirty (30) days of the date of the invoice. Company reserves the right (in addition to any other rights or remedies Company may have) to suspend Customer’s and all Authorized Users’ access to the Platform if any Fees are more than thirty (30) days overdue until such amounts are paid in full.

3. 4.3 Taxes.
   

   The Fees are exclusive of all applicable sales, use, value-added, and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the provision of the Services, or the license of the Platform to Customer. Customer will make all payments of Fees to Company free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Company will be Customer’s sole responsibility, and Customer will provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.

4. 4.4 Interest.
   

   Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

5. 4.5 Fee Disputes.
   

   Customer must notify Company in writing of any dispute regarding any Fees within thirty (30) days of Customer’s receipt of the applicable invoice. Such notice must describe in reasonable detail the nature and basis of the dispute and the specific amount disputed. Any Fees (or portion thereof) not disputed within such thirty (30) day period shall be deemed accepted by Customer and shall be due and payable in accordance with this Agreement. For the avoidance of doubt, Customer shall remain obligated to pay all undisputed Fees in accordance with Section 4.2, notwithstanding any pending dispute.

5. CUSTOMER CONTENT AND RESPONSIBILITIES.

1. 5.1 Customer Content.
   

   Customer, and not Company, is entirely responsible for all Customer Content that Customer or its Authorized Users upload, transmit, or otherwise make available through, or to, the Platform. When Customer makes available any Customer Content on or to the Platform, Customer represents and warrants that Customer has sufficient rights to use such Customer Content in connection with the Platform.

2. 5.2 Customer Content.
   

   As between Company and Customer, Customer (or its licensors) is the owner of all right, title, and interest in Customer Content. Customer hereby authorizes Company to access, use, and reproduce the Customer Content solely as necessary to provide the Services during the Term. Company will not use Customer Content for the benefit of any other customer. As between Company and Customer, Customer will have sole responsibility for the accuracy, quality, and legality of the Customer Content.

3. 5.3 Customer Responsibility for Data and Security.
   

   Customer and its Authorized Users will be responsible for the security of all passwords and other Access Protocols required to access the Platform. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.

4. 5.4 Workspace Images.
   

   The Platform may provide workspace environments using: (a) Company-provided images consisting of a default operating system and pre-installed open-source software, which are provided “as is” without warranty of any kind; or (b) Customer-Supplied Software provided by Customer. Where Customer provides software or other materials to Company for the purpose of creating or configuring a workspace image on Customer’s behalf, Company will use commercially reasonable efforts to configure the workspace image in accordance with Customer’s reasonable instructions and the materials provided. Such materials shall be deemed Customer Content and the resulting image shall be treated as a Customer-Supplied Software for purposes of this Agreement. Customer is solely responsible for all Customer-Supplied Software, including ensuring that Customer has all necessary rights, licenses, and authorizations for any operating system, software, or content included therein. Company’s hosting, building, and operation of Customer-Supplied Software does not constitute an endorsement or assumption of liability for such images by Company. In particular, Customer represents and warrants that it has the right to deploy, use and provide Company a copy of such third party software solely to deploy on behalf of Customer.

5. 5.5 Ephemeral Sessions; Data Deletion.
   

   Unless otherwise specified in the applicable Order Form, each Session is ephemeral. Upon termination of a Session (including when an Authorized User logs out), all Session Data will be permanently deleted and will not be recoverable. Customer acknowledges and agrees that Company has no obligation to retain, recover, or back up any Session Data following the end of a Session. Customer is solely responsible for saving any data it wishes to retain to its own systems or designated persistent storage prior to ending a Session.

6. 5.6 Persistent Storage.
   

   The Platform may allow Customer to connect workspace Sessions to persistent storage for data that Customer wishes to retain beyond a Session. Persistent storage may be provided in two configurations, as specified in the applicable Order Form: (a) Customer-managed storage, in which Customer connects the Platform to Customer’s own storage infrastructure (e.g., network-attached storage, cloud storage buckets, or other Customer-controlled systems), in which case Customer is solely responsible for the availability, security, backup, and integrity of such storage and all data stored therein; or (b) Company-managed storage, in which Company provides a storage environment for Customer’s use, which is provided “as is” without warranty of any kind, including any warranty of availability, data integrity, or fitness for a particular purpose. Regardless of the configuration, Customer is solely responsible for all data stored in persistent storage. Company shall have no liability for any loss, corruption, or unauthorized access to data in Customer-managed storage. Company’s liability for data in Company-managed storage shall be limited to the extent expressly set forth in this Agreement.

7. 5.7 Third-Party Takedown Requests.
   

   If Company receives a written request, demand, or notice from a third party (including any governmental or regulatory authority) alleging that any Customer Content hosted on or accessible through the Platform infringes, misappropriates, or otherwise violates such third party’s rights or Applicable Laws (a “Takedown Request”), Company will promptly notify Customer of the Takedown Request and provide Customer with a copy thereof or a reasonable summary of its basis. Customer shall have ten (10) business days following receipt of such notice to respond to Company with evidence or a reasonable explanation demonstrating that the Customer Content at issue does not violate the rights asserted in the Takedown Request. If Customer fails to respond within such ten (10) business day period, or if Customer’s response does not reasonably demonstrate that the Customer Content is non-infringing or otherwise lawful, Company may, in its reasonable discretion, remove, disable access to, or require Customer to remove the applicable Customer Content from the Platform. Company may also remove or disable access to Customer Content immediately and without prior notice to Customer if Company reasonably determines that the continued availability of such Customer Content exposes Company to material legal liability or is required by Applicable Laws. Company shall not be liable to Customer for any removal or disabling of access to Customer Content undertaken in good faith pursuant to this Section. Customer shall remain solely responsible for all Customer Content and any Losses arising from any Takedown Request related thereto.

8. 5.8 Aggregated and De-Identified Data.
   

   Notwithstanding anything to the contrary in this Agreement, Company may collect, use, and disclose data derived from Customer’s use of the Platform that is aggregated or de-identified such that it does not identify Customer, any Authorized User, or any individual, and does not include any Customer Content (“Usage Data”). Company may use Usage Data during and after the Term for purposes of product improvement, benchmarking, analytics, and the development of new features and services. As between Company and Customer, all Usage Data is the property of Company.

9. 5.9 Data Processing.
   

   To the extent that Company processes personal data on behalf of Customer in connection with the Services, the Parties will enter into a Data Processing Addendum in a form provided by Company (the “DPA”). In the event of a conflict between the DPA and this Agreement with respect to the processing of personal data, the terms of the DPA will control. Customer is solely responsible for determining whether the Services are appropriate for the storage and processing of any particular category of personal data and for ensuring that Customer’s use of the Services complies with Applicable Laws relating to data protection and privacy.

6. WARRANTIES AND DISCLAIMERS.

1. 6.1 Limited Warranty.
   

   Company represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional manner consistent with general industry standards. Company further represents and warrants that the Platform will operate in material conformance with the Documentation. Provided that Customer notifies Company in writing of any breach of the foregoing warranties, specifying the breach in reasonable detail, Company will, as Customer’s sole and exclusive remedy for any breach of the foregoing, re-perform the Services which gave rise to the breach.

2. 6.2 Compliance Disclaimer.
   

   The Services have not been vetted for compliance with Applicable Laws for any specific use case, and Customer is solely responsible for determining the legal sufficiency of Customer’s use of the Platform under Applicable Laws. Customer expressly acknowledges and agrees that Customer is solely responsible for ensuring that its use of the Platform complies with Applicable Laws.

3. 6.3 General Disclaimer.
   

   EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, THE SERVICES, THEIR COMPONENTS, ANY DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT COMPANY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

4. 6.4 Customer Warranty.
   

   Customer represents and warrants that: (a) all Customer Content will not infringe any Intellectual Property Rights or misappropriate any trade secret; (b) Customer Content will not be deceptive, defamatory, obscene, pornographic, or unlawful; (c) Customer Content will not contain any viruses, worms, or other malicious computer programming codes intended to damage Company’s systems or data; (d) Customer Content will not otherwise violate the rights of a third party; (e) Customer and its Authorized Users will use the Platform only in compliance with Applicable Laws and will not use the Platform for any illegal purpose; (f) with respect to any Customer-Supplied Software or third-party software that Customer or its Authorized Users install, upload, or run within the Platform, Customer has all necessary rights, licenses, and authorizations to use such software and to authorize Company to host and run such software as part of the Services; and (g) Customer will not use, and will not permit any Authorized User to use, the Platform to attack, probe, scan, or attempt to gain unauthorized access to any third-party system, network, or data, or to obscure the origin of network traffic for malicious or unlawful purposes. Company is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Platform contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Platform.

7. LIMITATION OF LIABILITY.

1. 7.1 Types of Damages.
   

   EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, CUSTOMER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING, OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED PURSUANT TO APPLICABLE LAW (“EXCLUDED DAMAGES”), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

2. 7.2 Amount of Damages.
   

   TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EXCLUDED DAMAGES, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL COMPANY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

3. 7.3 Basis of the Bargain.
   

   The Parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.

8. CONFIDENTIALITY.

1. 8.1 Confidential Information.
   

   “Confidential Information” means any nonpublic information of a Party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving Party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Platform, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Company. Customer Content will be considered Confidential Information of Customer.

2. 8.2 Protection of Confidential Information.
   

   The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence.

3. 8.3 Exceptions.
   

   The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.

9. INDEMNIFICATION.

1. 9.1 By Company.
   

   Subject to the exceptions below, Company will defend, indemnify, and hold harmless Customer and its officers, directors, managers, and employees from and against any and all losses, liabilities, damages, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred in connection with any third-party action, claim, or proceeding (each, a “Claim”) alleging that the Platform infringes or misappropriates any third-party Intellectual Property Rights.

2. 9.2 Exceptions to Company Indemnification Obligations.
   

   Company shall not be obligated to indemnify, defend, or hold harmless Customer for a Claim to the extent arising from or related to: (a) use by Customer or any Authorized User of the Platform not in accordance with this Agreement; (b) any unauthorized modifications, alterations, or implementations of the Platform made by or at the request of Customer; (c) any Customer Content, including Customer-Supplied Software; or (d) any use of the Platform in combination with products, services, or content not supplied or specified in writing by Company.

3. 9.3 By Customer.
   

   Customer will defend, indemnify, and hold harmless Company and its officers, directors, managers, and employees from and against any and all Losses incurred in connection with any Claim arising from or related to: (a) Customer’s, or its Authorized Users’ violation of Applicable Laws; (b) any Customer Content, including any assertion that such Customer Content infringes, violates, or misappropriates any third-party Intellectual Property Rights; (c) Customer’s or its Authorized Users’ violation of Section 2.6 set forth in this Agreement; or (d) any Customer-Supplied Software or third-party software installed, uploaded, or run by Customer or its Authorized Users within the Platform.

4. 9.4 Procedure.
   

   The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified Party will promptly notify the indemnifying Party in writing of any threatened or actual Claim; (b) the indemnifying Party will have sole control of the defense or settlement of any Claim; and (c) the indemnified Party will cooperate with the indemnifying Party to facilitate the settlement or defense of any Claim.

5. 9.5 Infringement Remediation.
   

   If the Platform becomes, or in Company’s reasonable opinion is likely to become, the subject of a Claim of infringement or misappropriation, Company may, at its sole option and expense: (a) procure for Customer the right to continue using the Platform; (b) modify or replace the Platform (or the affected portion thereof) so that it becomes non-infringing, provided that such modification or replacement does not materially diminish the functionality of the Platform; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement (or the affected Order Form) upon written notice to Customer and refund to Customer any prepaid Fees covering the remainder of the then-current Term following the effective date of such termination, calculated on a pro rata basis. This Section states Company’s sole liability, and Customer’s sole and exclusive remedy, with respect to any Claim that the Platform infringes or misappropriates any third-party Intellectual Property Rights.

10. TERM AND TERMINATION.

1. 10.1 Term.
   

   This Agreement will begin on the Effective Date and continue in full force and effect for the duration set forth in the applicable Order Form, unless earlier terminated in accordance with the Agreement (the “Initial Term”). Unless otherwise stated in the applicable Order Form, the Initial Term will be one (1) year. Thereafter, the Agreement will automatically renew for additional terms of one (1) year (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either Party gives written notice of non-renewal to the other Party at least thirty (30) days prior to the expiration of the then-current Term.

2. 10.2 Termination for Breach or Insolvency.
   

   Either Party may terminate this Agreement upon notice to the other Party (a) if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach, or (b) if the other Party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within sixty (60) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business. Notwithstanding the foregoing, Company may immediately suspend or terminate Customer’s access to the Platform if Customer violates Section 2.6 or any license restriction set forth in this Agreement.

3. 10.3 Effect of Termination.
   

   Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each Party will comply with the obligations to return all Confidential Information of the other Party, as set forth in Section 8 (Confidentiality); and (c) any amounts owed to Company under this Agreement will become immediately due and payable. Sections 1, 3.2, 3.3, 3.4, 4, 6, 7, 8, 9, 10.3, and 11 will survive expiration or termination of this Agreement for any reason.

11. MISCELLANEOUS.

1. 11.1 Governing Law and Venue.
   

   This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Each Party hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in New Castle County, Delaware for any dispute arising from or related to this Agreement.

2. 11.2 Export.
   

   Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.

3. 11.3 Severability.
   

   If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

4. 11.4 Waiver.
   

   Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

5. 11.5 No Assignment.
   

   Customer will not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Company, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.

6. 11.6 Compliance with Law.
   

   Customer will comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Documentation.

7. 11.7 Force Majeure.
   

   Any delay in the performance of any duties or obligations of either Party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, or any other event beyond the control of such Party, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.

8. 11.8 Independent Contractors.
   

   Company’s relationship to Customer is that of an independent contractor, and neither Party is an agent, employee, joint venturer, or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Company.

9. 11.9 Notices.
   

   All notices required or permitted under this Agreement must be delivered in writing, if to Company, by emailing contracts@kasm.com and if to Customer by emailing the Customer email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other Party at the address listed on an applicable Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each Party may change its email address and/or address for receipt of notice by giving notice of such change to the other Party.

10. 11.10 Counterparts.
    

    This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

11. 11.11 Entire Agreement.
    

    This Agreement is the final, complete, and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of each Party.