1. SERVICES: Kinsa shall provide to Client data, documentation, software, analysis, applications, and/or consultancy services (collectively, the “Services”) described in each mutually executed statement of work or other form of document referencing these General Terms (each, an “SOW”). “Client” shall mean the client set forth in the applicable SOW. As used herein, “Agreement” shall mean any relevant SOW, together with these Kinsa General Terms & Conditions (“General Terms”) where incorporated therein by reference, and any schedules, riders, addenda, or supplemental terms attached thereto or referenced therein (collectively, “Supplemental Terms”). Client shall provide all relevant information, instructions, and/or access to Client’s information technology systems reasonably required for Kinsa to provide the Services. Kinsa will determine the methodology, means, and approach for the provision of any and all Services and projects in its sole discretion.
2. LICENSE: Kinsa grants to Client a limited, non-exclusive, non-sublicensable, non-transferable license to use the Kinsa Materials contained in the Services internally and solely for its own direct benefit, and only as necessary within and/or in conjunction with such Services, subject to the restrictions set forth herein and any geographic, site, or other limitations as may be specified in the SOW. “Kinsa Materials” shall mean any and all data and/or databases (collectively, “Kinsa Data”), data models, documentation, software, source code, object code, tools, algorithms, user interface designs, methodologies, concepts, and other materials owned by or licensed to Kinsa prior to, independently of, or in conjunction with its performance of the Services or compiled, obtained, and/or generated by Kinsa in its performance of the Services, any information or materials derived from the foregoing, and all intellectual property rights therein.
3. RESTRICTIONS: Any access of Kinsa Materials by third parties shall be subject to Kinsa’s prior written consent and such third party’s execution of a third party access agreement or similar agreement with Kinsa, except as may be otherwise specifically permitted pursuant to an applicable Kinsa policy. In addition, Client shall not directly or indirectly reverse engineer, decompile, disassemble, or analyze the Services for the purposes of (i) re-identifying methodologies, algorithms, processes, or procedures embedded in the Services, or otherwise used to produce the Services, (ii) identifying or isolating the information associated with specific outlets, suppliers, prescribers, or other entities or individuals not explicitly identified in any Services provided to Client, or (iii) accessing or deriving the source code for any licensed software.
4. PROPRIETARY RIGHTS: Client acknowledges and agrees that the Kinsa Materials shall remain the sole and exclusive property of Kinsa (and/or its licensors, as applicable). Kinsa does not grant, and Client does not receive, any other interest in any Kinsa Materials, Services or Deliverables, except for those rights explicitly granted under the Agreement. “Deliverables” shall mean all deliverables to be provided to Client hereunder. Notwithstanding anything to the contrary in this Agreement, Client grants Kinsa a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback (as defined below) for any and all purposes. Client agrees that it does not have to provide Feedback to Kinsa. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Client (whether in oral, electronic or written form) to Kinsa regarding the Services or Kinsa Materials. Kinsa shall retain sole and exclusive ownership of the Services and Kinsa Materials, as currently existing or modified over time using such Feedback, unless otherwise expressly agreed in writing by Kinsa in advance. Client shall not remove, alter, modify, or deface any confidential, copyright, or other proprietary notices contained on, affixed to, encoded, or recorded in any Kinsa Materials, or fail to preserve or denote all copyright and other proprietary notices with respect to, all Kinsa Materials.
5. PAYMENT: Client agrees to pay such fees as may be specified in an SOW. Unless otherwise specified in the SOW, Client shall pay the amount of each invoice from Kinsa within thirty (30) days from the date of the invoice. If Client fails to pay any amount when due, Client shall pay, in addition to the invoice amount, interest at a rate equal to the lesser of the three-month US Dollar London Interbank Offered Rate (LIBOR) plus five percent (5%) per annum on the unpaid amount, or the maximum amount permitted under applicable law, beginning thirty-five (35) days from the date of the invoice until such amounts are paid. Client shall have the exclusive responsibility for paying all applicable taxes, duties, fees, levies, or other governmental charges payable in connection with the Services except for taxes based on Kinsa’s net income.
6. CONFIDENTIALITY: Neither party shall communicate, disclose, or provide to any third party any information provided by one party to the other in connection with the Services which is identified at the time of its disclosure as confidential or which, by the nature or type of information, reasonably should be regarded as confidential information (collectively “Confidential Information”), except as otherwise expressly permitted in these General Terms or Kinsa policies. Client acknowledges and agrees that the Kinsa Materials are confidential to Kinsa. Each party agrees to treat the terms of the Agreement, including any pricing details, as the Confidential Information of the other party. Each party agrees to treat the Confidential Information of the other as confidential, using the same degree of care used by the receiving party to protect the receiving party’s own confidential information, but in any event not less than a reasonable degree of care. Each party shall advise permitted recipients of Confidential Information of the confidential nature of such information. Notwithstanding the foregoing, Kinsa may add Client’s name to Kinsa’ published list of customers. This confidentiality provision does not apply to any information: (i) available in the public domain through no fault of the receiving party; (ii) independently developed by or on behalf of the receiving party without reference to any Confidential Information of the disclosing party; or (iii) disclosed to the receiving party without restriction by a third party having a bona fide right to do so and not having an obligation of confidence with respect to such information; provided, however, that none of the foregoing exceptions shall apply to Kinsa Data. Nothing in this Agreement shall restrict a party from disclosing any Confidential Information where the production of any such Confidential Information is compelled under process or request by a court or administrative or law enforcement agency of competent jurisdiction, provided that in each case the producing party shall ensure that such Confidential Information is afforded the highest level of protection via any available mechanisms for the protection of confidential or proprietary materials, and provided further that no disclosure of any Kinsa Data may be made in such circumstances without Kinsa’s written consent.
7. DATA PROTECTION: To the extent (if any) that either party receives or provides personally identifiable information (“PII”) in the course of performing or receiving Services, the parties agree that they will comply with the data privacy laws applicable to its provision or receipt of such PII. The party providing such PII is responsible for providing, obtaining and maintaining any notices, consents or approvals necessary to make such information available to the other party for processing and use. Kinsa agrees that it will collect, store, use, disclose, and process PII in connection with its performance of Services only in accordance with the Agreement and/or Client’s written instructions, or as permitted or required by law. Client agrees that any PII relating to Client’s employees, consultants and agents provided to Kinsa in connection with the performance of the Services may be used and processed by Kinsa in connection with the administration and provision of the Services, and to identify and inform Client (including Client’s employees, consultants and agents) of additional Kinsa services which may be of interest to them.
a. Each SOW shall become effective as of the date of any such SOW and shall continue until the expiry or earlier termination thereof. Each SOW shall be independent of any other SOW, and the expiration or termination of one SOW shall not affect any other SOW.
b. Except as may be expressly provided in an SOW, either party may terminate an SOW only as follows: (i) immediately where any license restrictions, intellectual property rights, or payment obligations are breached by the other party, or in the case of insolvency of the other party, or (ii) upon thirty (30) days’ written notice to the other party in the event of a material breach of any SOW (except in the case of force majeure) by the other party that has not been cured within such thirty (30) day period. Any breach of any provision of the Agreement shall be deemed to be a breach of the relevant SOW. Any Services and Client’s license in the Kinsa Materials shall immediately terminate in the event of any termination by Kinsa pursuant to (i) or (ii) above.
c. Without prejudice to any rights or remedies available to Kinsa, in the event of any permitted termination of any SOW, Client shall pay Kinsa, at a minimum, for the Services performed through the effective date of termination and all noncancelable expenses.
d. Sections 2 (License), 3 (Restrictions), 4 (Proprietary Rights), 5 (Payment), 6 (Confidentiality), 7 (Data Protection), 9 (Warranty and Disclaimer), 10 (Limitation of Liability), and 11 (Miscellaneous) of these General Terms shall survive and remain in effect after expiration or termination of any SOW.
e. If Kinsa discontinues production or support of any Services with respect to all of its clients, Kinsa shall use commercially reasonable efforts to give Client advance written notice of any such discontinuance. If Kinsa discontinues any Services for which Client has prepaid, Client shall receive a pro-rata refund of any prepaid fees for the terminated Service not supplied to Client.
f. Client may terminate this Agreement for its convenience prior to the end of the term; provided that Client gives Kinsa at least sixty (60) days prior written notice of such termination and pays Kinsa an early termination fee in an amount equal to the following: (1) for an SOW with a term of one year or less, 100% of the remaining unpaid charges for the terminated Services for the remaining term as set forth in the applicable SOW; or (2) for an SOW with a term that exceeds one year, (i) 100% of the remaining unpaid charges for the terminated Services in the then current annual services term (for clarity, if the SOW has a three year term and is effective on June 1, 2020, the first annual services term is June 1, 2020 – May 31, 2021, the second annual services term is June 1, 2021 – May 31, 2022, and so on); plus (ii) 50% of the remaining unpaid charges for the terminated Services for annual services term immediately following the then-effective annual services term; plus (iii) any fees identified in the SOW for the terminated Service as having been previously waived or discounted for Services performed prior to termination. Such amount will be billed to Client in one lump sum. The parties agree that in the event Client terminates the Agreement or a particular Service for its convenience, actual damages would be difficult to determine and that these liquidated damages are a reasonable and fair estimate of the damages which may be caused by such early termination and are not a penalty. Client shall not be liable for the early termination fee if Client terminates this agreement pursuant to Section 8(b).
9. WARRANTY AND DISCLAIMER:
a. Warranty: Kinsa warrants that the Services shall substantially conform to the applicable Kinsa published specifications prevailing as of the time the Services are rendered (“Published Specifications”). Client shall assume sole responsibility for any use of the Services that is inconsistent with such Published Specifications. The entire liability of Kinsa, and Client’s exclusive remedy for any breach of this warranty, shall be for Kinsa to use commercially reasonable efforts to correct, in accordance with Kinsa operating procedures for quality assurance, any such non-conformance which has been properly reported by Client to Kinsa in writing within 60 days of delivery of the affected Services.
b. Disclaimer: Except as set forth above, the Services, Deliverables, and Kinsa Materials are provided on an “as-is” basis without any further warranties of any kind. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, KINSA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES AND THE KINSA MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY:
a. No Consequential Damages: To the fullest extent permitted under applicable law, Kinsa shall not be liable for any incidental, consequential, indirect, or special damages, lost business or anticipated savings, lost profits, lost data, lost goodwill, or third party claims, whether foreseeable or not, arising out of or in connection with the Services or the Agreement even if Kinsa has been advised, knew, or should have known, of the possibility of such damages and regardless of the form of action, whether in contract or in tort, including negligence and strict liability.
b. Liability Limitation: To the fullest extent permitted under applicable law, and regardless of the form of action, whether in contract or in tort, including negligence and strict liability, Kinsa’s total liability, if any, for any and all claims arising out of or in connection with the Services or the Agreement shall not exceed the total fees (excluding taxes) paid by Client under the applicable SOW over the last twelve (12) months with respect to the affected portion of the Service or Deliverable.
a. Entire Agreement: The Agreement constitute all of the terms and conditions with respect to the subject matter of each SOW, merging, integrating, and superseding all prior and contemporaneous representations and understandings with respect thereto. No modification, amendment or waiver of any of the provisions of any Agreement shall be binding upon the parties unless made in writing and duly executed by authorized representatives of Client and Kinsa. The Agreement shall take precedence over Client’s additional or different terms and conditions, including any general terms of purchase of Client, to which notice of objection is hereby given. No SOW is intended to benefit any third party unless expressly stated therein.
b. Order of Precedence: In the event of any conflicts or inconsistencies among the Agreement, the following order of precedence shall apply, but only with respect to the specific subject matter of each: (i) Supplemental Terms, (ii) SOW terms, (iii) General Terms.
c. Force Majeure: Except for the obligation to pay money for Services rendered or Deliverables provided, each party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including the failure of any data supplier of Kinsa to timely supply data.
d. Assignment: Except as set out below, Client shall not without the prior written consent of Kinsa assign, transfer, or otherwise delegate, in whole or in part, the benefit of, or Client’s rights or obligations under the Agreement. Kinsa and Client each shall have the right to assign the Agreement (including by operation of law) to the surviving party of any merger, acquisition, or reorganization to which it is a party, or to the purchaser of all or substantially all of such assigning party’s assets, provided, however, that no such assignment by Client shall be to a competitor of Kinsa, and provided further that any assignment by Client shall not entitle such permitted assignee to receive the pricing extended to Client hereunder or to use any Services or Deliverables for the benefit of the assignee’s existing business (i.e., its business existing prior to such assignment). Such pricing and use shall require further written agreement between the permitted assignee and Kinsa.
e. Governing Law: Except as otherwise specified in an SOW, the Agreement and all matters arising out of or related thereto shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflicts of law principles, and any dispute between Client and Kinsa arising out of or related to the Agreement will be heard by and be subject to the exclusive jurisdiction of the state and federal courts of San Francisco County, California.
f. Compliance with Applicable Laws: Neither Kinsa nor Client shall violate any law or regulation directly applicable, in the case of Kinsa, to its performance of the Services and, in the case of Client, to the receipt or use of the Services. Nothing contained in the foregoing shall be interpreted to shift Client’s legal or regulatory compliance obligations, which are and shall remain the sole responsibility of Client.
g. Export Restrictions: Client hereby acknowledges that the Services, Deliverables, and Kinsa Materials may be subject to United States or European Union export control and sanctions laws. Client agrees that the Services, Deliverables and Kinsa Materials shall not, without all appropriate licenses and authorizations, be provided to or used in support of business with any person, entity or territory subject to United States or European Union sanctions, nor shall they be exported or re-exported to any person or destination prohibited by, or otherwise used in violation of, applicable export control or economic sanctions laws.
h. Execution: An SOW may be executed by the parties on the same or separate counterparts, and/or by .pdf or electronic signature. Any executed copy of an SOW made by reliable means (e.g., scanned image, photocopy, or facsimile) will be deemed to be an original, and all executed counterparts together will constitute one and the same instrument.
i. Notices: Client shall provide prompt written notice to Kinsa of any material breach by Client of any SOW. All notices or demands required in connection with any SOW shall be given in writing and shall be delivered to the respective addresses identified in the applicable SOW by an internationally-recognized common carrier’s overnight delivery service providing proof of delivery. For any notices sent to Kinsa, a required copy shall also be sent to the attention of the Kinsa Legal Department at its global corporate offices in the United States.
j. Waiver / Severability: The failure to enforce at any time the provisions of this Agreement or to require at any time performance by the other party of any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions or to affect either the validity of this Agreement, or the right of any of the parties thereafter to enforce each and every provision in accordance with the terms of this Agreement. If any provision of the Agreement is held to be invalid or unenforceable by a judicial or regulatory authority, the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable. If no feasible interpretation would save the provision, it shall be severed and the remainder shall not be affected and shall be enforced as nearly as possible according to its original terms and intent.