TERMS OF USE


PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE KURTOSIS PRODUCTS (AS DEFINED BELOW) OFFERED BY KURTOSIS TECHNOLOGIES, INC. (“KURTOSIS”). BY SIGNING UP FOR A KURTOSIS ACCOUNT, MAKING USE OF THE KURTOSIS PRODUCTS AND/OR ENTERING INTO ONE OR MORE ORDER FORMS WITH KURTOSIS WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE“AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTERPRISE CUSTOMER (AS DEFINED BELOW), YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THESE TERMS ON BEHALF OF SUCH ENTERPRISE CUSTOMER AND TO BIND SUCH ENTERPRISE CUSTOMER TO THESE TERMS. ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA KURTOSIS’S STANDARD ONLINE PROCESS (INCLUDING ANY TERMS PRESENTED BY KURTOSIS AS PART OF ANY ACCOUNT SIGNUP PROCESS) AND WHICH IS ACCEPTED BY KURTOSIS SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IFTHE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS

1. Users, Order Forms, Kurtosis Products

1.1 Kurtosis allows both individual users (“Individual Customers”) and entities (“Enterprise Customers”) to create anaccount through Kurtosis’s websites, mobile applications, and/or other online services to access the Kurtosis Products (an “Account”).“Customer” as used herein refers to either Individual Customers or Enterprise Customers, as applicable. Individual Customersacknowledge and agree that if such Customer signed up for an Account using an email or other credentials associated with an entity oremployer who enters into or currently has an agreement for the Kurtosis Products with Kurtosis (an “Entity Agreement”), suchIndividual Customer’s Account may be merged with or subsumed by such employer’s or entity’s Account (an “Employer AccountTransfer”), at which point this Agreement will terminate with respect to such Individual Customer and any further use of the KurtosisProducts will be pursuant to the applicable Entity Agreement.

1.2 Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations andrestrictions set forth on any applicable Order Form) Kurtosis grants Customer a nonexclusive, limited, personal, nonsublicensable,nontransferable right and license to internally access and use the Kurtosis product(s) and/or service(s) specified in such Order Form(collectively, the “Kurtosis Product,” or “Kurtosis Products”) during the applicable Term (as defined below) for either the internalbusiness or personal purposes of Customer, as applicable, in accordance with Section 1.1 hereof.

2. Access

2.1 Customer shall be responsible for maintaining the security of Customer’s Account, password(s) (including but not limited to administrative and user passwords, if applicable) and files, and for all uses of Customer account with or without Customer’s knowledge or consent. 

2.2 Enterprise Customers shall cooperate with Kurtosis in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Kurtosis Products.

3. Restrictions and Responsibilities

3.1 Customer will not (and will not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Kurtosis Products or any software, documentation or data related to the Kurtosis Products (“Software”) (except to the extent such restriction is prohibited by applicable law); (ii) reproduce, duplicate, copy, modify, translate, or create derivative works based on the Kurtosis Products or any Software (except to the extent expressly permitted by Kurtosis or authorized within the Kurtosis Products); (iii) sell, resell, use the Kurtosis Products or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove, deface, obscure or alter any proprietary notices or labels; (v) use the Kurtosis Products to build an application or product that is competitive with any Kurtosis product or service; (vi) interfere or attempt to interfere with the proper working of the Kurtosis Products or any activities conducted on the Kurtosis Product; (vii) bypass any measures Kurtosis may use to prevent or restrict access to the Kurtosis Products (or other accounts, computer systems or networks connected to the Kurtosis Product); or (viii) use the Kurtosis Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, export control laws of the United States and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation). 

3.2 Although Kurtosis has no obligation to monitor Customer’s use of the Kurtosis Products, Kurtosis may do so and may prohibit any use of the Kurtosis Products it reasonably believes may be (or alleged to be) in violation of the foregoing.

3.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Kurtosis Products, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

4. Proprietary Rights

4.1 Customer shall own all right, title and interest in and to any data, information or other material provided, uploaded, or submitted by Customer in the course of using the Kurtosis Products (“Customer Data”). Kurtosis shall own and retain all right, title and interest in and to (a) the Kurtosis Products and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing. 

4.2 Customer, not Kurtosis, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Kurtosis as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy).    

4.3 Customer agrees that it shall not provide any information to Kurtosis that is considered (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless Customer has entered into a separate agreement with Kurtosis relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, drivers’ license numbers or other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (v) “sensitive” personal data, as defined under the European Union’s General Data Protection Regulation or any other applicable data privacy law, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life or the commission or alleged commission any crime or offense.   

4.4 Customer may (but is not obligated to) provide suggestions, comments or other feedback to Kurtosis with respect to the Kurtosis Products (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Kurtosis notwithstanding anything else. Kurtosis acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Kurtosis a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account has been inactive for ninety (90) days or more. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Kurtosis may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Kurtosis Products to Customer, (B) testing, improving and operating Kurtosis’s products and services, and (C) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Kurtosis’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Kurtosis’s products and services).“Aggregated Anonymous Data” means data submitted to, collected by, or generated by Kurtosis in connection with Customer’s use of the Kurtosis Products, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. No rights or licenses are granted except as expressly set forth herein.  

4.5 By using the Kurtosis Products, Individual Customers acknowledge and agree that such Customers are subject to the provisions in this Agreement as well as those in the Privacy Policy (located at https://www.kurtosis.com/privacy-policy).

4.6 To the extent that the Customer Data includes any personal data, (i) Kurtosis will process, retain, use, and disclose such personal data only as necessary to provide the Kurtosis Products hereunder, which constitutes a business purpose, and (ii) Kurtosis agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than providing the Kurtosis Products, or to retain, use, or disclose such personal data outside of the scope of this Agreement, provided that none of the foregoing shall prevent Kurtosis from transferring an Individual Customer’s Account and sharing an Individual Customer’s Data with an applicable Enterprise Customer employer in connection with an Employer Account Transfer, which Customer Data may then be used by such Enterprise Customer in accordance with the applicable Entity Agreement. Kurtosis understands its obligations under applicable data protection laws and will comply with them.

5. Payment of Fees and Audit

5.1 Customer will pay Kurtosis the fees described in the Order Form for the Kurtosis Products  in accordance with the terms therein (the “Fees”). If Customer’s use of the Kurtosis Products exceeds any capacity or other limitations set forth on the Order Form, Kurtosis reserves the right to limit Customer’s usage and Kurtosis may provide Customer with a quote for the additional capacity allowance. Kurtosis reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Kurtosis has billed Customer incorrectly, Customer must contact Kurtosis in order to receive an adjustment or credit. Inquiries should be directed to Kurtosis’s customer support department.

5.2 Kurtosis may use a third-party payment processor (the “Payment Processor”) to bill Customer for Fees. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Currently, Kurtosis uses Stripe, Inc. as the Payment Processor. Customer can access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policy at https://stripe.com/us/privacy. Kurtosis is not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use paid Kurtosis Products, Customer authorizes Kurtosis, through the Payment Processor, to charge Customer’s chosen payment method (the “Payment Method”), and agrees to make payment using that selected Payment Method. Kurtosis reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.

5.3 Some of the Kurtosis Products may consist of an initial period, for which there is a one-time charge, followed by recurring periodic charges as agreed to by Customer. By choosing a recurring payment plan, Customer acknowledge that such Kurtosis Products have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. KURTOSIS MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY KURTOSIS) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE THE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE KURTOSIS REASONABLY COULD ACT..

6. Term and Termination

6.1 Subject to earlier termination as provided below or in Section 1.1, unless otherwise set forth in an Order Form, this Agreement is for the Initial Term as specified in the Order Form (and if not specified, the Initial Term is (i) one (1) year for Enterprise Customers and (ii) one (1) month for Individual Customers), and shall be automatically renewed for additional periods of the same duration as the Initial Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

6.2 In addition to any other remedies it may have, either party may terminate this Agreement: (a) on thirty (30) days’ prior written notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s notice (subject to any shorter time limitations as are set forth in the Agreement, including, but not limited to, Section 6.2 for late payment); (b) immediately on written notice if: (i) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ninety (90) days; or (iii) the other party is adjudged bankrupt or insolvent. Customer will pay in full for the Kurtosis Products up to and including the last day on which the Kurtosis Products are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 

6.3 If this Agreement has terminated other than in connection with an Employer Account Transfer, Customer’s Account will be disabled and Customer may not be granted access to Customer’s Account or any files or other content (including Customer Data) contained in Customer’s Account. After termination of this Agreement, except for if Customer’s content and files have been transferred in connection with an Employer Account Transfer, Customer may request that Kurtosis delete all content and files contained in Customer’s Account, and Kurtosis shall use reasonable efforts to do so. Kurtosis reserves the right to maintain residual copies of Customer Data for backup purposes. Kurtosis may also withdraw and at its discretion reallocate the public web address of Customer’s Account.

7. Third Party Services

Customer acknowledges and agrees that the Kurtosis Products may contain links or connections to third party websites or services that are not owned or controlled by Kurtosis (“Third Party Services”). Kurtosis is not responsible for the operation of any Third Party Services nor the availability or operation of the Kurtosis Products to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Kurtosis does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

8. Warranty and Disclaimer

Kurtosis shall use reasonable efforts consistent with prevailing industry standards to maintain the Kurtosis Products in a manner which minimizes errors and interruptions in the Kurtosis Products. While the Kurtosis Products may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Kurtosis or by third-party providers, or because of other causes beyond Kurtosis’s reasonable control, Kurtosis shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. SUBJECT TO THE ABOVE, KURTOSIS DOES NOT WARRANT THAT THE KURTOSIS PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE KURTOSIS PRODUCTS. THE KURTOSIS PRODUCTS SHOULD NOT BE USED, AND ARE NOT LICENSED FOR, USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE KURTOSIS PRODUCTS AND IMPLEMENTATION ASSISTANCE IS PROVIDED “AS IS” AND KURTOSIS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9. Indemnity

Customer agrees to indemnify and hold Kurtosis and its officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) Customers’ use of the Kurtosis Products (including any actions taken by a third party using your account), and (b) Customer’s violation of these Terms. In the event of such a claim, suit, or action (“Claim”), Kurtosis will attempt to provide notice of the Claim to the contact information we have for Customer’s account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

10. Limitation of Liability

EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 4, AND EXCEPT FOR BODILY INJURY OF A PERSON, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE KURTOSIS PRODUCTS UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, 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. Neither party may assign any of its rights or obligations hereunder without the other party’s written consent; provided that (i) for Individual Customers, Kurtosis may transfer the Customer Data (or portion thereof) as set forth in Section 1.1 hereof (ii) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (iii) Kurtosis may utilize subcontractors in the performance of its obligations hereunder. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. You acknowledge that any use of the Kurtosis Products contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Kurtosis Products, may cause irreparable injury to Kurtosis, and under such circumstances Kurtosis, its affiliates, and suppliers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Kurtosis in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Customer otherwise agrees to reasonably cooperate with Kurtosis to serve as a reference account upon request. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.

TERMS OF USE

PLEASE READ THESE TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE KURTOSIS PRODUCTS (AS DEFINED BELOW) OFFERED BY KURTOSIS TECHNOLOGIES, INC. (“KURTOSIS”). BY SIGNING UP FOR A KURTOSIS ACCOUNT, MAKING USE OF THE KURTOSIS PRODUCTS AND/OR ENTERING INTO ONE OR MORE ORDER FORMS WITH KURTOSIS WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU OR THE ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE“AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTERPRISE CUSTOMER (AS DEFINED BELOW), YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO AGREE TO THESE TERMS ON BEHALF OF SUCH ENTERPRISE CUSTOMER AND TO BIND SUCH ENTERPRISE CUSTOMER TO THESE TERMS. ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA KURTOSIS’S STANDARD ONLINE PROCESS (INCLUDING ANY TERMS PRESENTED BY KURTOSIS AS PART OF ANY ACCOUNT SIGNUP PROCESS) AND WHICH IS ACCEPTED BY KURTOSIS SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IFTHE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS

1. Users, Order Forms, Kurtosis Products

1.1 Kurtosis allows both individual users (“Individual Customers”) and entities (“Enterprise Customers”) to create anaccount through Kurtosis’s websites, mobile applications, and/or other online services to access the Kurtosis Products (an “Account”).“Customer” as used herein refers to either Individual Customers or Enterprise Customers, as applicable. Individual Customersacknowledge and agree that if such Customer signed up for an Account using an email or other credentials associated with an entity oremployer who enters into or currently has an agreement for the Kurtosis Products with Kurtosis (an “Entity Agreement”), suchIndividual Customer’s Account may be merged with or subsumed by such employer’s or entity’s Account (an “Employer AccountTransfer”), at which point this Agreement will terminate with respect to such Individual Customer and any further use of the KurtosisProducts will be pursuant to the applicable Entity Agreement.

1.2 Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations andrestrictions set forth on any applicable Order Form) Kurtosis grants Customer a nonexclusive, limited, personal, nonsublicensable,nontransferable right and license to internally access and use the Kurtosis product(s) and/or service(s) specified in such Order Form(collectively, the “Kurtosis Product,” or “Kurtosis Products”) during the applicable Term (as defined below) for either the internalbusiness or personal purposes of Customer, as applicable, in accordance with Section 1.1 hereof.

2. Access

2.1 Customer shall be responsible for maintaining the security of Customer’s Account, password(s) (including but not limited to administrative and user passwords, if applicable) and files, and for all uses of Customer account with or without Customer’s knowledge or consent. 

2.2 Enterprise Customers shall cooperate with Kurtosis in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Kurtosis Products.

3. Restrictions and Responsibilities

3.1 Customer will not (and will not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Kurtosis Products or any software, documentation or data related to the Kurtosis Products (“Software”) (except to the extent such restriction is prohibited by applicable law); (ii) reproduce, duplicate, copy, modify, translate, or create derivative works based on the Kurtosis Products or any Software (except to the extent expressly permitted by Kurtosis or authorized within the Kurtosis Products); (iii) sell, resell, use the Kurtosis Products or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) remove, deface, obscure or alter any proprietary notices or labels; (v) use the Kurtosis Products to build an application or product that is competitive with any Kurtosis product or service; (vi) interfere or attempt to interfere with the proper working of the Kurtosis Products or any activities conducted on the Kurtosis Product; (vii) bypass any measures Kurtosis may use to prevent or restrict access to the Kurtosis Products (or other accounts, computer systems or networks connected to the Kurtosis Product); or (viii) use the Kurtosis Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations (including but not limited to any privacy laws, export control laws of the United States and laws or regulations concerning intellectual property, consumer and child protection, obscenity or defamation). 

3.2 Although Kurtosis has no obligation to monitor Customer’s use of the Kurtosis Products, Kurtosis may do so and may prohibit any use of the Kurtosis Products it reasonably believes may be (or alleged to be) in violation of the foregoing.

3.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Kurtosis Products, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

4. Proprietary Rights

4.1 Customer shall own all right, title and interest in and to any data, information or other material provided, uploaded, or submitted by Customer in the course of using the Kurtosis Products (“Customer Data”). Kurtosis shall own and retain all right, title and interest in and to (a) the Kurtosis Products and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing. 

4.2 Customer, not Kurtosis, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Kurtosis as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy).    

4.3 Customer agrees that it shall not provide any information to Kurtosis that is considered (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless Customer has entered into a separate agreement with Kurtosis relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, drivers’ license numbers or other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (v) “sensitive” personal data, as defined under the European Union’s General Data Protection Regulation or any other applicable data privacy law, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life or the commission or alleged commission any crime or offense.   

4.4 Customer may (but is not obligated to) provide suggestions, comments or other feedback to Kurtosis with respect to the Kurtosis Products (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Kurtosis notwithstanding anything else. Kurtosis acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Kurtosis a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account has been inactive for ninety (90) days or more. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Kurtosis may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Kurtosis Products to Customer, (B) testing, improving and operating Kurtosis’s products and services, and (C) generating Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous Data for Kurtosis’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Kurtosis’s products and services).“Aggregated Anonymous Data” means data submitted to, collected by, or generated by Kurtosis in connection with Customer’s use of the Kurtosis Products, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. No rights or licenses are granted except as expressly set forth herein.  

4.5 By using the Kurtosis Products, Individual Customers acknowledge and agree that such Customers are subject to the provisions in this Agreement as well as those in the Privacy Policy (located at https://www.kurtosis.com/privacy-policy).

4.6 To the extent that the Customer Data includes any personal data, (i) Kurtosis will process, retain, use, and disclose such personal data only as necessary to provide the Kurtosis Products hereunder, which constitutes a business purpose, and (ii) Kurtosis agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than providing the Kurtosis Products, or to retain, use, or disclose such personal data outside of the scope of this Agreement, provided that none of the foregoing shall prevent Kurtosis from transferring an Individual Customer’s Account and sharing an Individual Customer’s Data with an applicable Enterprise Customer employer in connection with an Employer Account Transfer, which Customer Data may then be used by such Enterprise Customer in accordance with the applicable Entity Agreement. Kurtosis understands its obligations under applicable data protection laws and will comply with them.

5. Payment of Fees and Audit

5.1 Customer will pay Kurtosis the fees described in the Order Form for the Kurtosis Products  in accordance with the terms therein (the “Fees”). If Customer’s use of the Kurtosis Products exceeds any capacity or other limitations set forth on the Order Form, Kurtosis reserves the right to limit Customer’s usage and Kurtosis may provide Customer with a quote for the additional capacity allowance. Kurtosis reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or the current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Kurtosis has billed Customer incorrectly, Customer must contact Kurtosis in order to receive an adjustment or credit. Inquiries should be directed to Kurtosis’s customer support department.

5.2 Kurtosis may use a third-party payment processor (the “Payment Processor”) to bill Customer for Fees. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. Currently, Kurtosis uses Stripe, Inc. as the Payment Processor. Customer can access Stripe’s Terms of Service at https://stripe.com/us/checkout/legal and their Privacy Policy at https://stripe.com/us/privacy. Kurtosis is not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to use paid Kurtosis Products, Customer authorizes Kurtosis, through the Payment Processor, to charge Customer’s chosen payment method (the “Payment Method”), and agrees to make payment using that selected Payment Method. Kurtosis reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment.

5.3 Some of the Kurtosis Products may consist of an initial period, for which there is a one-time charge, followed by recurring periodic charges as agreed to by Customer. By choosing a recurring payment plan, Customer acknowledge that such Kurtosis Products have an initial and recurring payment feature and Customer accepts responsibility for all recurring charges prior to cancellation. KURTOSIS MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM CUSTOMER, UNTIL CUSTOMER PROVIDES PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY KURTOSIS) THAT CUSTOMER HAS TERMINATED THIS AUTHORIZATION OR WISHES TO CHANGE THE PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE KURTOSIS REASONABLY COULD ACT..

6. Term and Termination

6.1 Subject to earlier termination as provided below or in Section 1.1, unless otherwise set forth in an Order Form, this Agreement is for the Initial Term as specified in the Order Form (and if not specified, the Initial Term is (i) one (1) year for Enterprise Customers and (ii) one (1) month for Individual Customers), and shall be automatically renewed for additional periods of the same duration as the Initial Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

6.2 In addition to any other remedies it may have, either party may terminate this Agreement: (a) on thirty (30) days’ prior written notice if the other party materially breaches any of the terms of this Agreement and such breach remains uncured thirty (30) days following such party’s receipt of the terminating party’s notice (subject to any shorter time limitations as are set forth in the Agreement, including, but not limited to, Section 6.2 for late payment); (b) immediately on written notice if: (i) all or substantially all of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver or trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ninety (90) days; or (iii) the other party is adjudged bankrupt or insolvent. Customer will pay in full for the Kurtosis Products up to and including the last day on which the Kurtosis Products are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 

6.3 If this Agreement has terminated other than in connection with an Employer Account Transfer, Customer’s Account will be disabled and Customer may not be granted access to Customer’s Account or any files or other content (including Customer Data) contained in Customer’s Account. After termination of this Agreement, except for if Customer’s content and files have been transferred in connection with an Employer Account Transfer, Customer may request that Kurtosis delete all content and files contained in Customer’s Account, and Kurtosis shall use reasonable efforts to do so. Kurtosis reserves the right to maintain residual copies of Customer Data for backup purposes. Kurtosis may also withdraw and at its discretion reallocate the public web address of Customer’s Account.

7. Third Party Services

Customer acknowledges and agrees that the Kurtosis Products may contain links or connections to third party websites or services that are not owned or controlled by Kurtosis (“Third Party Services”). Kurtosis is not responsible for the operation of any Third Party Services nor the availability or operation of the Kurtosis Products to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Kurtosis does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

8. Warranty and Disclaimer

Kurtosis shall use reasonable efforts consistent with prevailing industry standards to maintain the Kurtosis Products in a manner which minimizes errors and interruptions in the Kurtosis Products. While the Kurtosis Products may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Kurtosis or by third-party providers, or because of other causes beyond Kurtosis’s reasonable control, Kurtosis shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. SUBJECT TO THE ABOVE, KURTOSIS DOES NOT WARRANT THAT THE KURTOSIS PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE KURTOSIS PRODUCTS. THE KURTOSIS PRODUCTS SHOULD NOT BE USED, AND ARE NOT LICENSED FOR, USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE KURTOSIS PRODUCTS AND IMPLEMENTATION ASSISTANCE IS PROVIDED “AS IS” AND KURTOSIS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

9. Indemnity

Customer agrees to indemnify and hold Kurtosis and its officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to any claims relating to (a) Customers’ use of the Kurtosis Products (including any actions taken by a third party using your account), and (b) Customer’s violation of these Terms. In the event of such a claim, suit, or action (“Claim”), Kurtosis will attempt to provide notice of the Claim to the contact information we have for Customer’s account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).

10. Limitation of Liability

EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 4, AND EXCEPT FOR BODILY INJURY OF A PERSON, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE KURTOSIS PRODUCTS UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, 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. Neither party may assign any of its rights or obligations hereunder without the other party’s written consent; provided that (i) for Individual Customers, Kurtosis may transfer the Customer Data (or portion thereof) as set forth in Section 1.1 hereof (ii) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (iii) Kurtosis may utilize subcontractors in the performance of its obligations hereunder. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. You acknowledge that any use of the Kurtosis Products contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Kurtosis Products, may cause irreparable injury to Kurtosis, and under such circumstances Kurtosis, its affiliates, and suppliers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Kurtosis in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Customer otherwise agrees to reasonably cooperate with Kurtosis to serve as a reference account upon request. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.