These terms and conditions set forth your rights and responsibilities when using our software as a service (“SaaS”) tools and platform. Please read these terms and conditions carefully before using our services as they govern your access to and your use of our Services as described further herein. Insight Automation, Inc., a Kentucky corporation doing business as Cardinal Kinetic (“Cardinal Kinetic”), is willing to provide you access to the Services as the individual or legal entity utilizing the services (“Customer”), on the condition that you accept all of these terms and conditions.  By accessing or using the Services, you signify acceptance of and agree to these terms and conditions.  If you do not agree to these terms and conditions, do not access or use the Services.  

These terms and conditions together with any quote, purchase order or sales order form (collectively “Order Form”) or other written terms agreed to between Customer and Cardinal Kinetic constitutes an enforceable contract between Customer and Cardinal Kinetic (collectively, the “Agreement”) and such Order Form is incorporated by reference as if set forth herein.  In the event of an inconsistency between this Agreement and an Order Form (whether or not signed), this Agreement takes precedence over and supersedes any Order Form, whether any such Order Form is issued by Cardinal Kinetic or Customer. By entering into this Agreement on behalf of any entity or organization, you represent that you have the legal authority to bind that entity or organization to this Agreement. 

  

1.1.  License. Subject to the terms and conditions of this Agreement, during the Term, Cardinal Kinetic: (i) will use commercially reasonable efforts to host, operate and maintain the internet accessible services set forth on the Order Form, which may include the use of Cardinal Kinetics’ platform (the “Platform”), the Cardinal Kinetic Application Programing Interface (the “API”), support and maintenance services provided by Cardinal Kinetic pursuant to this Agreement and any Order Form, as well as other services offered by Cardinal Kinetic (collectively, the “Services”), (ii) grants Customer a non-exclusive, non-transferable, non-sublicensable right and license to access and use the Services; and (iii) grants Customer a non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content (defined in Section 1.5 below) solely for purposes of using the Services. For clarity, unless otherwise specified by Cardinal Kinetic in writing, any and all rights or licenses granted by Cardinal Kinetic to Customer shall only apply to Customer and not Customer’s affiliates, including, without limitation, any parent, subsidiary, or other entity controlled by or under common control with Customer.  Customer acknowledges that this Agreement is a service agreement and Cardinal Kinetic will not be delivering copies of any software comprising the Content to Customer as part of the Services.

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1.2.  Access and Account Setup. Upon execution of an Order Form, Cardinal Kinetic will provide Customer with a unique login and password to access the Services that are hosted and maintained by Cardinal Kinetic. Customer shall be responsible for the acts or omissions of any person who accesses the Services using logins provided to or created by Customer. Cardinal Kinetic reserves the right to modify or discontinue any part of the Services at any time by giving prior written notice to Customer, provided that in the event such modification or discontinuance materially reduces the functionality of the Services, Customer may terminate this Agreement upon at least thirty (30) days’ prior written notice to Cardinal Kinetic, and Cardinal Kinetic  shall provide Customer with a pro-rated refund of any pre-paid fees for Services not performed by the effective date of termination. From time to time, Cardinal Kinetic personnel may log in to the Service under Customer’s account in order to maintain or improve the Service, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access. Upon execution of an Order Form, Customer will also be provided with a user guide, Instruction Manual and other materials relating to the specifications and operation of the Services (the “Documentation”).  Customer acknowledges that it is Customer’s responsibility to review such Documentation and comply with the requirements as set forth therein and that such compliance is necessary and integral to the correct and proper use of the Services as well as related equipment including, but not limited to, Cardinal Kinetics’ InoDrive Equipment.

       

1.3.  Service Availability. Cardinal Kinetic will use commercially reasonable efforts to maintain the Service availability to send and receive data, subject to downtimes resulting from maintenance, repairs and upgrades. Cardinal Kinetic will attempt to notify Customer electronically via the Service in advance of any planned downtime. Notwithstanding the foregoing, Cardinal Kinetic shall not be liable for any failures in the Service or any other problems which are related to: (i) the Customer Content (defined in Section 1.5 below); or (ii) outages including those related to any telecommunications or public Internet backbones, networks or servers, or other equipment or service outside of Cardinal Kinetics’ facilities or control.

1.4.  Service Support. Cardinal Kinetic will provide Customer with phone support, chat support and e-mail support for Customer’s use of the Services during Cardinal Kinetics’ regular business hours (Monday-Friday 8 a.m. – 5 p.m. EST excluding United States holidays). Customer agrees that Cardinal Kinetic is not responsible to provide support for any issues resulting from problems, errors or inquiries related to Customer’s systems or hardware. 

1.5.  Customer Content. As used in this Agreement, the term “Content” includes, without limitation, information, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible on or through the Services, including without limitation all Customer Content (as defined herein). All Content created through or submitted to the Services by Customer, including all of Customer’s information and data, (collectively, the “Customer Content”) is the sole responsibility of Customer. Customer acknowledges and agrees that Cardinal Kinetic will not assume any, and hereby disclaims all, responsibility and liability for Customer Content or any modifications thereto. Customer is solely responsible for: (i) the content, quality and accuracy of the Customer Content as made available by Customer; (ii) ensuring that Customer has a valid legal basis for processing Customer Content and (iii) ensuring that the Customer Content made available by Customer complies with all applicable laws and regulations. Customer hereby grants Cardinal Kinetic a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Customer Content in connection with providing the Services to Customer. Cardinal Kinetic acknowledges that it receives no ownership or ownership rights, except to the extent specified herein, or other rights in any Customer Content, and all rights, title and interest in such Customer Content shall remain with Customer. Cardinal Kinetic shall not, and shall not permit its personnel to disclose Customer Content, unless authorized by the terms and conditions of this Agreement, or by Customer in writing, or if Cardinal Kinetic is required to do so by law or court order. Customer hereby agrees that Cardinal Kinetic may: (i) use and disclose in aggregate, anonymous and de-identified form, information and data (including Usage Data as described herein) derived from Customer Content where the resulting information does not in any way identify or allow the identification of Customer, and (ii) access, use in accordance with the terms and conditions of this Agreement, but not otherwise use or disclose, Customer Content information and data for Cardinal Kinetics’ internal business purposes, including for purposes of planning, support, administration and invoicing related to Customer’s use of the Services, and improving and/or creating enhancements to or new offerings related to Cardinal Kinetics’ business, Services and services. 

1.6.  Usage Data. As used in this Agreement, the term “Usage Data” means data generated in connection with Customer’s access, use and configuration of the Services and data derived from it. Cardinal Kinetic shall be permitted to collect and use the Usage Data for its own business purposes. 

  

1.7.  Use Restrictions. Except as expressly permitted in this Agreement, Customer shall not directly or indirectly: (i) use any of Cardinal Kinetic ’s Confidential Information (defined in Section 3.1 below) to create any service, software, documentation or data that is similar or competitive to any aspect of the Services, (ii) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein, (iii) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (iv) copy, harvest, scrape, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (v) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (vi) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services, (vii) remove any copyright patent, trademark, or other intellectual property notices, information, and restrictions contained in any Content accessed through the Services, or (viii) permit any third party to engage in any of the foregoing proscribed acts.

1.8.  Limitations. Cardinal Kinetic will not be responsible or liable for any failure in the Services resulting from or attributable to: (i) Customer use of the Services not in accordance with this Agreement and Documentation provided by Cardinal Kinetic, (ii) failures in any telecommunications, network or other service or equipment outside of Cardinal Kinetic ’s or its service providers’ facilities, (iii) Customer's or any third party’s products, services, negligence, acts or omissions, (iv) any force majeure or other cause beyond Cardinal Kinetics’ reasonable control, or (v) unauthorized access, breach of firewalls including cyber security breach and other hacking by third parties.

1.9.  Third Party Materials. As used in this Agreement the term “Third Party Materials” means open-source software programs that are made available by third parties under their respective open source software (“OSS”) licenses. The Services provided under this Agreement include Third Party Materials, the use of which are subject to their respective OSS licenses as indicated in the Documentation. Cardinal Kinetic reserves the right to introduce new or updated OSS elements into the Services, and when any such updates occur the corresponding OSS license will be made accessible.  To the extent OSS licenses are applicable to the Services, Customer acknowledges that Customer shall be responsible for compliance with all such OSS licenses.  

1.10.  Modifications and Updates. Cardinal Kinetic may, in its sole discretion, from time to time make changes to the features and functionality of the Services or Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Cardinal Kinetics’ products or services to its customers, (b) the competitive strength of, or market for, Cardinal Kinetics’ products or services, (c) such Platform’s cost efficiency or performance; or (ii) to comply with applicable law (collectively, “Updates”).  Updates may modify or delete certain features and/or functionalities of the Services.  Customer agrees and acknowledges that Cardinal Kinetic has no obligation to (i) provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Services to Customer.  Customer further agrees that all Updates will be (A) deemed to constitute an integral part of the Services, and (B) subject to the terms and conditions of this Agreement.   

1.11. Customer Systems. Customer shall be responsible for obtaining and maintaining both the functionality and the security of any equipment and ancillary services needed to connect to, access or otherwise use each Platform, including modems, hardware, servers, operating systems and the like.  

1.12 Customer’s Responsibilities. Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data.  Customer will ensure that any use of the Services by Customer’s users is in accordance with the terms of this Agreement.  Customer agrees to notify Cardinal Kinetic immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of Customer Data. Customer acknowledges and agrees that the Services may be subject to the U.S. Export Administration Laws and Regulations and to the extent applicable, Customer will be responsible for compliance with same. Customer agrees that no part of the Services or information obtained through use of the Services, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government. Proscribed countries are set forth in the U.S. Export Administration Regulations and are subject to change without notice, and Customer must comply with the list as it exists in fact. Customer certifies that neither Customer nor any its users are on the U.S. Department of Commerce's Denied Persons List or affiliated lists or on the U.S. Department of Treasury's Specially Designated Nationals List. Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required. Any unauthorized use of the Services may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes. The Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.

 

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2.1. Reservation of Rights. Subject to the rights and licenses expressly granted hereunder, Customer shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Customer Content. Subject to the limited rights and licenses expressly granted hereunder, Cardinal Kinetic (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, the Platform, the API, all Content (excluding the Customer Content), all Cardinal Kinetic  trademarks, names, logos, all copies, modifications and derivative works thereof, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights therein.

2.2. Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Cardinal Kinetic (collectively, “Feedback”), Customer hereby grants Cardinal Kinetic a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Cardinal Kinetic will not identify Customer as the source of the Feedback. Nothing in this Agreement limits Cardinal Kinetics’ right to independently use, develop, own, evaluate, or market products in such format or fashion as Cardinal Kinetic deems appropriate, whether incorporating Feedback or otherwise.

3.1. Definition. Each party agrees that the private business, technical and financial information, including without limitation, the Services, the Platform, and the API, and all software, source code, inventions, algorithms, know-how and ideas and the terms and conditions of this Agreement, designated in writing as confidential or disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). For the avoidance of doubt, any and all data provided to Customer through the Services (other than Customer Content) shall be considered Cardinal Kinetics’ Confidential Information. Confidential Information does not include information that: (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (iv) is independently developed by the receiving party.

3.2. Confidentiality. Except for the specific rights granted by this Agreement, the receiving party shall not access, use or disclose any of the disclosing party’s Confidential Information without its written consent, and shall use at least the standard of care used to protect its own Confidential Information, but not less than reasonable care to protect the disclosing party’s Confidential Information, including ensuring that its employees and contractors with access to such Confidential Information (i) have a need to know for the purposes of this Agreement and (ii) have been apprised of and agree to restrictions at least as protective of the disclosing party’s Confidential Information as this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior consent of the other party; provided that either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.

3.3.  Required Disclosure. Nothing herein shall prevent a receiving party from disclosing any Confidential Information as necessary pursuant to any applicable court order, law, rule or regulation; provided that prior to any such disclosure, the receiving party shall use reasonable efforts to: (i) promptly notify the disclosing party (to the extent legally permitted) in writing of such requirement to disclose and (ii) cooperate with the disclosing party in protecting against or minimizing any such disclosure or obtaining a protective order.

4.1. Fees. Customer will pay Cardinal Kinetic the then applicable fees described in an Order Form in accordance with the terms set forth therein (“Fees”), including any Fees incurred through Customer’s use of, a Platform exceeding a service level capacity specified on an Order Form. Upon the commencement of any Renewal Term (defined in Section 10.1 below), the Customer shall be liable to Cardinal Kinetic for payment of a renewal Fee, which may be increased, in Cardinal Kinetics’ sole discretion up to the amount or percentage, as the case may be, set forth in the applicable Order Form. 

4.2. Payments. Cardinal Kinetic may choose to bill through an invoice or via its Ecommerce Customer Portal, in which case full payment for invoices issued in any given month must be received by Cardinal Kinetic no later than thirty (30) days after the issue date unless otherwise specified on the Order Form. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, including all expenses of collection. Cardinal Kinetic may suspend Services to a Customer in the event of payment delinquency of more than sixty (60) days. All amounts payable to Cardinal Kinetic shall be paid without any setoff, deduction or adjustment for any reason. 

4.3. Taxes. Customer shall pay, and shall be liable for, all taxes, fees or charges imposed by a tax authority such as sales, use, excise, or value-added taxes relating to Cardinal Kinetics’ provision of Services hereunder. Cardinal Kinetic may choose to charge Customer and remit such taxes, fees or charges imposed by a tax authority.  Otherwise, Customer shall pay such amounts directly to the tax authority.  Customer will provide Cardinal Kinetic with any applicable resale certificates or exemption certificates. Cardinal Kinetic shall pay, and be liable for, all taxes based on its net income or capital. 

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5.1  General.  Each party represents and warrants that: (i) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (ii) this Agreement is legally binding upon it and enforceable in accordance with its terms; (iii) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding to which it is a party or by which it may be bound; and (iv) it will perform its obligations hereunder in accordance with all applicable laws.

5.2   Cardinal Kinetic.  Cardinal Kinetic represents and warrants that it will provide the Services in a professional manner consistent with general industry standards and that the Services will perform in all material respects in accordance with the Documentation.  This limited warranty is conditioned upon Customer complying with its responsibilities as set forth herein and providing Cardinal Kinetic with prompt written notice of the Services’ failure to materially perform in accordance with the Documentation.     

5.3  Customer. Customer represents and warrants that: (i) Customer has all rights to grant the licenses to Cardinal Kinetic  set forth herein, including without limitation to Customer Content, without infringement or violation of any applicable laws or third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights, and (ii) Customer shall not make available through the Services any Content that is disparaging, obscene, offensive, or otherwise inappropriate or that contains any viruses or any other harmful code.

CARDINAL KINETIC WARRANTS THAT ITS SERVICES WILL PERFORM IN ALL MATERIAL RESPECTS PROVIDED CUSTOMER COMPLIES WITH (I) ITS RESPONSIBILITIES AS SET FORTH HEREIN AND (II) THE DOCUMENTATION.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, CARDINAL KINETIC DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPED OR ERROR FREE, OR THAT THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THE SERVICE WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY CARDINAL KINETIC OR THE OPERATION OF THE SERVICES WILL BE SECURE OR THAT CARDINAL KINETIC AND ITS THIRD PARTY VENDORS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSING CUSTOMER DATA OR CUSTOMER’S CONFIDENTIAL INFORMATION, OR ANY ERRORS WILL BE CORRECTED OR ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE. THE WARRANTIES STATED IN SECTION 5 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CARDINAL KINETIC.  THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT AS STATED IN SECTION 5 ABOVE, THE SERVICES  ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S PURPOSE.

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7.1  Customer.  Customer shall defend and indemnify Cardinal Kinetic and/or its affiliates and their respective officers, directors, employees, agents and contractors against any third-party claims, suits, proceedings, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or resulting from: (i) an alleged infringement or violation by the Customer Content of such third-party’s patent, copyright, trademark, or trade secret; or (ii) any claim that Cardinal Kinetics’ use of the Customer Content in accordance with the terms of this Agreement violates applicable law. 

 7.2  Cardinal Kinetic. Cardinal Kinetic agrees to: (i) defend against and hold Customer harmless from any claim by a third party that the Services infringe a valid U.S. patent (issued as of the Effective Date) (defined in Section 10.1 below)), or any copyright or trade secret of such third party and (ii) indemnify Customer for settlement amounts or third-party damages, liabilities, costs and expenses (including reasonable attorneys’ fees) awarded and arising out of such claims. 

If any part of the Services become or, in Cardinal Kinetic ’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Cardinal Kinetic may, at its option: (i) obtain for Customer the right to continue using the Services or (ii) replace or modify the Services so that such services become non-infringing. If (i) and (ii) above are not reasonably available to Cardinal Kinetic, Cardinal Kinetic may terminate this Agreement upon written notice to Customer and refund to Customer a pro-rated amount of any pre-paid fees. Cardinal Kinetic shall have no obligation to indemnify hereunder with respect to any claim based upon: (i) any use of the Services not strictly in accordance with this Agreement, the Documentation or in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Services not created by or for Cardinal Kinetic, (iii) any Customer Content, or (iv) Customer’s continuing allegedly infringing activity after being notified thereof. The foregoing states the entire liability of Cardinal Kinetic, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation.

7.3.  Procedures.  Any claim for indemnification hereunder requires that: (i) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (ii) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim.  The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld). The indemnified party shall not be liable for any settlement made without its prior written consent.

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IN NO EVENT SHALL –CARDINAL KINETIC BE LIABLE TO CUSTOMER OR ANY THIRD PERSON CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, TORT, PRODUCT LIABILITY,NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY: (A) INTERRUPTION OF USE, LOSS OF DATA OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS, DATA, USE OF ANY SERVICE OR GOODWILL, OR (C) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER TO CARDINAL KINETIC DURING THE SIX (6) MONTHS PRECEDING SUCH CLAIM, EVEN IF ANY SUCH DAMAGES WILL EXCEED OR SUBSTANTIALLY EXCEED THE ABOVE AMOUNTS AND WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

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10.1.  Term. Unless otherwise specified in an applicable Order Form or terminated as provided herein, this Agreement shall commence on the effective date contained in the Order Form (the “Effective Date”) and shall continue thereafter for a period of one (1) year from the Effective Date (the “Term”). The Term shall automatically renew for successive one (1) year terms (each a “Renewal Term”), unless either party notifies the other party in writing of its intent not to renew at least thirty (30) days prior to the end of the then current Term or as otherwise provided herein. 

10.2.  Termination. Cardinal Kinetic may terminate this Agreement upon written notice to Customer if no Order Form is in effect. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed by the parties after receiving a written notice of such breach from the non-breaching party.  

10.3.  Effect of Termination. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that all obligations which accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive. The provisions of Sections 2 (Proprietary Rights), 3 (Confidentiality), 7 (Indemnification), 6 (Disclaimers), 8 (Limitation of Liability), 9 (Warnings), 11 (General Provisions) and this Section 10.3 shall survive the termination of this Agreement. 

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11.1. Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all prior negotiations or agreements (oral or written), between Cardinal Kinetic and Customer regarding the subject matter hereof. Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement.

11.2.  Publicity.  Customer hereby consents to inclusion of its name and logo in client lists and marketing materials that may be published as part of Cardinal Kinetic ’s marketing and promotional efforts.  From time to time upon Cardinal Kinetic ’s request, Customer agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases and writing testimonials and case studies with statements attributed to a named employee of Customer).

11.3.  Modification and Waiver. No change, consent or waiver under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of both parties. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. 

11.4.  Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

11.5.  Governing Law. This Agreement shall be governed by and construed under the laws of the Commonwealth of Kentucky, and the United States, without regard to the applicable conflicts of laws provisions. The parties hereby agree that the state and federal courts sitting for Boone County, Kentucky shall have exclusive venue and jurisdiction relating to any disputes arising under the Agreement, and both parties hereby waive all objections to the jurisdiction and venue of such courts with respect to any such actions.

11.6.  Remedies.   In addition to each right and remedy as provided at law, in equity or in this Agreement, each party agrees that, in the event of any breach or threatened breach of this Agreement, including, but not limited to, Section 3 herein, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

11.7.  Notices.  All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated herein or at such other address designated by written notice.  Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email or facsimile; the day after being sent, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.

11.8.  Force Majeure.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.

11.9.  Assignment.  This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by Customer without Cardinal Kinetic 's written consent.  Cardinal Kinetic reserves the right to transfer and assign this Agreement to a third party or a company related to or affiliated with Cardinal Kinetic.  Cardinal Kinetic shall provide written notice to Customer in the event that it makes any such transfer and assignment and such transfer and assignment shall be effective on the date of such written notice.  This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

11.10. Commercial Computer Software. If Customer is an agency or contractor of the United States Government, Customer acknowledges and agrees that: (i) the SaaS Services (including any software forming a part thereof) were developed entirely at private expense; (ii) the SaaS Services (including any software forming a part thereof) in all respects constitute proprietary data belonging solely to Cardinal Kinetic; (iii) the SaaS Services (including any software forming a part thereof) are not in the public domain; and (iv) the software forming a part of the SaaS Services is “Commercial Computer Software” as defined in sub-paragraph (a)(1) of DFAR section 252.227-7014 or FAR Part 12.212. Customer shall provide no rights in the Commercial Computer Software (including any software forming a part thereof) to any U.S. Government agency or any other party except as expressly provided in this Agreement.

11.11.  Independent Contractors.  The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.

11.12. Privacy. The Cardinal Kinetic Privacy Policy (the “Privacy Policy”), as amended from time to time, is hereby incorporated by reference into this Agreement. You may be requested to submit personal data in connection with your use of the Services. The ways in which Cardinal Kinetic works collects and uses personal data, and your rights to request access to and correction of your personal data, are regulated by the Privacy Policy in accordance with applicable law. You consent to the transfer of your personal data to any department or office where Cardinal Kinetics’ organization does business from time to time. A copy of the Privacy Policy is available on Cardinal Kinetics’ website or by clicking this link: Privacy Policy . 

The parties acknowledge and agree that Cardinal Kinetic, Inc. is a service provider for the purposes of the California Consumer Privacy Act (“CCPA”) and is receiving personal information from Customer pursuant to the Agreement for a business purpose. Service Provider shall not sell any such personal information. Service Provider shall not retain, use or disclose any personal information provided by Customer pursuant to the Agreement except as necessary for the specific purpose of performing the services for Customer pursuant to the Agreement, or otherwise as set forth in the Agreement or as permitted by the CCPA. The terms “personal information,” “service provider,” “sale,” and “sell” are as defined in Section 1798.140 of the CCPA. Service Provider certifies that it understands the restrictions of this paragraph.

11.13 Non-Exclusive Service.  Customer acknowledges that the Services are provided on a non-exclusive basis.  Nothing shall be deemed to prevent or restrict Cardinal Kinetics’ ability to provide the Services or other technology, including any features or functionality first developed for Customer, to other parties. 

11.14  No Third Party Beneficiaries.  This Agreement is an agreement between the parties hereto, and confers no rights upon either party’s employees, agents, contractors, partners, customers, or upon any other person or entity. 

11.15 Verification of Compliance.  Customer agrees that upon request from Cardinal Kinetic or its authorized representative, Customer will, within ten (10) business days, fully document and certify that use of the Services at the time of the request is in conformity with the terms of this Agreement. 

11.16 Amendments.  Cardinal Kinetic reserves the right, at its sole discretion, to modify or replace this Agreement at any time.  If a revision is material, Cardinal Kinetic will provide at least ten (10) business days’ notice prior to any new material terms taking effect.  What constitutes a material change will be determined at Cardinal Kinetics’ sole discretion.  By continuing to access or use the Services after any modifications to this Agreement become effective, Customer agrees to be bound by the modified terms.  If Customer does not agree to the new terms, Customer is no longer authorized to use the Services.