Terms and Conditions

1.      DEFINITIONS. Capitalized terms used but not defined shall have the meanings given in the SOW.

          1.1. “Affiliate” means an organization, person or entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means: (a) direct or indirect ownership of more than 50% of the voting interests of the organization; or (b) the right to direct the management or business affairs of an entity.
          1.2. “Agreement” means, collectively, these Terms together with all SOWs.
          1.3. “Background IP” means, in respect of a Party, any and all intellectual property and intellectual property rights that: (a) was or were Generated by such Party prior to the Effective Date; (b) was or were owned by such Party prior to the Effective Date; (c) was or were licensed to such Party by a Third Party prior to the Effective Date; or (d) is a modification, alteration or enhancement to any item described in clause (a), (b) or (c) of this definition.
          1.4. “Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
          1.5. “Customer Data” means any data that is uploaded to the Platform, is analyzed by or is Generated through the use of the Services.
          1.6. “Customer System” means any information technology system of Customer, including hardware and software, used to access or otherwise realize the benefit of the Platform or Services.
          1.7. “Documentation” means the current technical and user documentation for the Platform, available upon request. The Documentation may be modified from time to time in Kona’s sole discretion.
          1.8. “Fees” means, collectively, the fees set out in a SOW.
          1.9. “Generate” means to create, author, develop, invent or otherwise generate.
          1.10. “Implementation Plan” means the plan for implementing the Services to be provided hereunder, including with respect to Platform access and use by Customer.
          1.11. “Implementation Services” means the services to be performed by Kona as required to complete an Implementation Plan.
          1.12. “Law” means any declaration, decree, directive, legislative enactment, order, common law, ordinance, regulation, rule, guideline, guidance or other binding restriction or requirement of or by any governmental authority, as may be amended or replaced from time to time.
          1.13. “Losses” means any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any Claim, default or assessment).
          1.14. “Machine Learning” means the application of any mathematical model that is derived from any algorithm using any dataset.
          1.15. “Output” means any coaching, advice or any other Slack-based content created using the Services.
          1.16. “Party” means each of Kona and Customer, and together they are the “Parties”.
          1.17. “Pilot Services” means the Services provided under a Pilot SOW.
          1.18. “Platform” means Kona’s platform designed to assist individuals with managing workplace teams, including the Software and Services and those capabilities all as defined within the Documentation.“Services” means, collectively, the services to be provided pursuant to a SOW.
          1.19. “Slack” means the communications platform made available by Slack Technologies, LLC, as implemented by Customer for Customer’s internal use.
          1.20. “Software” means Kona’s web-based application and proprietary artificial intelligence (“AI”) powered management coach, running on the Platform.
          1.21. “SOW” or “Statement of Work” means any statement of work between the Parties, which the Parties may agree to and execute from time to time and which incorporates by reference these Terms.
          1.22. “Terms” means this license agreement pursuant to which Kona provides the Services and which governs each SOW, subject to Section 2.1.
          1.23. “Third Party” means any person or entity other than a Party or any Affiliate of a Party.
          1.24. “User” means an employee of Customer authorized by Customer to use the Platform in accordance with this Agreement and who has been provided Platform access by Kona pursuant to Section 3.3, regardless of whether the individual is actively using the Platform at any given time.

2. SERVICES; LICENSE.
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          2.1. SOWs. Customer’s purchase of the Services and use of the Platform is subject to the terms of this Agreement. In the event of a conflict between these Terms and any SOW, these Terms shall govern unless such SOW specifically states that a term within such SOW supersedes these Terms. Any terms which may appear as pre-printed language or otherwise be on, attached to or inserted within any order form, quote, invoice, bill or other form or document issued by Customer shall be of no force or effect even if such form or document is accepted or executed by Kona.
          2.2. Pilot Term.
                    (a) Pilot Services are available only for the Pilot Term and subject to the terms and conditions specified in the applicable SOW. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, PILOT SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND.
                    (b) The Pilot Services will terminate on the last day of the Pilot Term. Thereafter, Customer and Kona may enter into a separate Production SOW, pursuant to which Kona will grant to Customer a general license to the Platform, which shall be subject to the terms of Section 2.3.
                    (c) Except as set forth above in this Section 2.2 or the applicable SOW, Pilot Service are subject to all other terms and conditions of this Agreement.
          2.3. General License. Subject to these Terms and payment of all Fees and any other amounts due hereunder, Kona hereby grants to Customer, during the Term, a limited, non-exclusive, non-transferable license, without the right to sublicense, to have Users access and use: (a) the Services via the Platform in accordance with the Documentation, including to Generate, use, reproduce and display Output, solely for Customer’s internal business purposes and not for the benefit of any other person or entity. The Platform includes functionality permitting employees of Customer to register for Kona’s generally available 2-week consumer trial under an express license between Kona and such employee. Any such employee will not be a “User” unless and until authorized by Customer to use the Platform under this Agreement in accordance with Section 3.3
          2.4. Copies. Customer may make a reasonable number of copies of the Documentation solely for back up or disaster recovery purposes. Customer shall reproduce all copyright, trademark, trade secret and other proprietary notices in such copies. Customer may not make a copy of any aspect of the Platform other than the Documentation. Upon termination of this Agreement, Customer shall promptly destroy or return to Kona, at Kona’s election, all copies of the Documentation.
          2.5. General Use Restrictions. Customer shall not, directly or indirectly, and shall not allow any Affiliate, User or Third Party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code or any underlying algorithm or idea from the Platform; (b) circumvent or violate any technical restriction of the Platform; (c) make any copies of the Platform or any portion thereof or any Documentation, except as otherwise authorized herein; (d) disclose the Platform or any portion thereof, or any Documentation to any Third Party; (e) sublicense, rent, lease, lend or host the Platform to or for other any Third Party; (f) attempt to unlock or bypass any initialization system, encryption method or copy protection devices in the Platform; (g) alter, remove or obscure any patent, trademark or copyright notice in the Platform or Documentation; (h) use components of the Platform independent of the Platform; (i) post, send, process or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including violating any Third Party’s rights using the Platform; (j) use the Platform to perform any activity which is or may violate any applicable Law, or is or may be, directly or indirectly, harmful, threatening, abusive, harassing, tortious or defamatory, or to perform any activity which violates the rights of any Third Party; (k) use any Confidential Information of Kona to contest the validity of any intellectual property of Kona; (l) publish or disclose to any Third Party any evaluation of the Platform; or (m) interfere with or disrupt the integrity or performance of the Platform. Customer will comply with all applicable Laws in connection with its use of the Platform or any Service or Output, including any applicable securities Laws, U.S. Export Administration Regulations, anti-corruption Laws and U.S. embargoes, as well as any Laws of any jurisdiction outside of the United States where the Platform or any Service or Output is used.
          2.6. Third Party Products. Customer acknowledges that the Platform may contain or be accompanied by certain software products of a Third Party (“Third Party Products”). Any Third Party Product shall be subject to any applicable Third Party licensor terms, including those which may be set forth in a readme file, text file, installation file or similar file or folder accompanying the Platform (collectively, “Third Party Notices”). The Third Party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between any Third Party Notice and other portions of this Agreement, the Third Party Notices will take precedence, but solely as to the Third Party Product to which such Third Party Notice relates. Except to the extent expressly provided otherwise in the Third Party Notices, Customer acknowledges that the Third Party Products are licensed for use solely with the Platform and may not be used on a standalone basis or with any other product of a Third Party and that Sections 7.1 and 9.2 of these Terms shall not be applicable to any Third Party Product. KONA MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS. KONA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY THIRD PARTY PRODUCT. CUSTOMER SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF EACH THIRD PARTY PRODUCT FOR WARRANTY AND PERFORMANCE INFORMATION.
          2.7. AI Terms; Output. Customer acknowledges and agrees that generative AI sometimes produces output that is unpredictable, random, incorrect or inapplicable (“AI Hallucinations”) and such output may include biases. Kona employs commercially reasonable measures designed to reduce the risk of AI Hallucinations and bias. Notwithstanding the foregoing, Customer is solely responsible for ensuring, and Kona will have no liability related to, the accuracy, quality, or useability of any of the Output.

3. RESPONSIBILITIES OF THE PARTIES.

          3.1. Delivery of Services; Support. Kona will provide Customer with the Platform and enable the use of the Services subject to the applicable SOW on the applicable SOW Effective Date. Kona will provide technical support for the Platform to Customer during the applicable SOW Term in accordance with Kona’s generally applicable support practices applicable at the time of the performance of such services. During the applicable SOW Term, Kona may update any Service as part of such support, as long as Kona does not materially and adversely change the performance thereof.      
          3.2. Slack Configuration. Customer will: (a) cause the “Kona” Slack application to be installed on Customer’s configuration of Slack for use by each User; and (b) provide Kona email addresses on Customer’s domain for each User. Subject to any limitations set forth in a SOW, Kona will send a notification to each such email address that a Kona license has been created for them and instructions for how to access Kona from within Slack. Customer acknowledges that all User access to Kona is via User Slack accounts and, accordingly, Customer and its Users are responsible for maintaining the confidentiality of all Slack login credentials. Kona shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms of this Section.
          3.3. Customer Personnel. Customer shall ensure all necessary personnel are available to Kona including with respect to Pilot Services. The unavailability of Customer personnel due to ordinary illness shall not be an event of force majeure as set forth in Section 12.2 and shall not relieve Customer of any of its obligations hereunder.
          3.4. Customer Systems. Kona may from time-to-time be required to access Customer Systems and Customer shall provide Kona with such access and assistance as Kona may reasonably require to exercise its rights or perform its obligations hereunder including for the purpose of providing Implementation Services and support. Customer shall provide Kona with such access to Customer Systems and assistance as Kona may reasonably require to exercise its rights or perform its obligations hereunder.

4. FEES; TAXES.

          4.1. Fees. During the Term, Customer shall pay to Kona the Fees set forth in each SOW. Except as set forth in a SOW, all Fees are payable in advance for the applicable Pilot Term, Initial Term or Renewal Term. Fees and reimbursement of costs or expenses are due and payable within thirty (30) days from the date of Kona’s invoice or as otherwise set forth in the SOW. Customer will pay a late charge of one percent (1%) per month or the highest amount permitted by applicable Law, whichever is less, on any Fees or costs or expenses not paid by the due date.
          4.2. Adjustments. The Fees are fixed for the duration of the Initial Term or Pilot Term, as applicable, and are subject to change for any subsequent Renewal Term. Except as otherwise set out in a SOW, Kona shall provide Customer at least sixty (60) days’ prior notice of any change to the Fees for a Renewal Term.
          4.3. Taxes. The Fees do not include do not include additional charges that may apply in a particular jurisdiction including applicable taxes or other regulatory fees. Customer will pay all international, national, federal, state, provincial or local sales, use, value added, goods and services, property, excise, or other taxes imposed on or with respect to this Agreement, except for any taxes imposed on the income of Kona. If any sales, use, value added, goods and services, property, excise, or other taxes (except for taxes based on Kona’s net income) are assessed against or required to be collected in connection with the Services, Kona will include such amounts on each invoice.

5. INTELLECTUAL PROPERTY.

          5.1. Output. Except for any existing right, title or interest that Kona has in and to any Background IP of Kona contained or utilized in any Output, and subject to Customer’s compliance with the terms of this Agreement, including payment of all Fees, Kona hereby assigns to Customer all right, title and interest in and to any intellectual property in any Output.
          5.2. No Sale. The license granted hereunder and any grant of rights to the Platform is not a sale of the Platform or any portion thereof. Kona retains all right, title and interest in and to the Platform, including any modifications, alterations or enhancements thereto.
          5.3. No Implied Licenses; Assignments. Except for the express assignments and licenses set forth in these Terms, these Terms do not transfer any right, title or interest in any intellectual property right of either Party to the other Party.
          5.4. Feedback. If Customer elects to provide Kona with any suggestion, idea for improvement, recommendation or other feedback (collectively, “Feedback”), Kona may use such Feedback without any restriction or payment and Kona shall own all rights, title and interest in and to any such Feedback.
          5.5. Improvement. Kona has the right to collect and analyze data relating to the provision, use or performance of any Service other than Customer Data (except as set out in Section 5.8), and Kona may: (a) use such data to improve any Service or for other development, diagnostic or corrective purposes in connection with any Service or to develop other Kona offerings; (b) disclose such data solely in aggregate or de-identified form; and (c) use any such improvement or make any such disclosure without limitation hereunder.
          5.6. Customer Data.
                    (a) Customer owns any Customer Data. Customer hereby grants to Kona a non-exclusive, irrevocable, royalty-free, fully paid, worldwide license to: (i) process, store and otherwise use Customer Data for the purposes of providing the Services during the Term including through combination with the data provided by or collected from other customers of Kona; (ii) process, store and otherwise use analytical output processed from metadata relating to Customer Data for any purpose perpetually; and (iii) improve the Platform through application of Machine Learning, tuning or any enhancement, modification, derivative or other improvement to the Platform in connection with the provision of any Service (“AI Improvements”), provided that Kona does not train any Machine Learning algorithm on or otherwise generate AI Improvements from Customer Data. Customer agrees that, in the ordinary course of Machine Learning development, as part of such AI Improvements, Kona may extract and retain patterns from Customer Data processed in connection with this Agreement which do not identify Customer and do not enable reconstruction of the Customer Data (“Patterns”) and use, copy, prepare derivative works of or otherwise exploit any such Pattern to continue to improve the Platform, or successor product or service, in perpetuity. Any AI Improvement arising from this Agreement shall be the sole and exclusive property of Kona and shall constitute part of Background IP of Kona.
                    (b) Customer shall be solely responsible for the accuracy, quality, integrity, legality, appropriation of and the right to use any Customer Data hereunder. Customer shall be responsible for obtaining any consent or other right necessary to process, store or otherwise use any Customer Data.
                    (c) To the extent that Kona is processing personal data on behalf of Customer pursuant to the Services under any applicable data protection Laws, including the European Union’s General Data Protection Regulation (EU) 2016/679, such processing will be in accordance with Kona’s Data Processing Addendum..

6. CONFIDENTIALITY.

          6.1. Confidential Information. Each Party may from time to time disclose confidential information to the other Party in connection with this Agreement, whether or not marked as such, and whether disclosed in writing, orally, visually or otherwise (“Confidential Information”). Customer Data and Output shall be deemed to be the Confidential Information of Customer. The Platform, any Feedback and any information regarding Fees shall each be deemed to be Confidential Information of Kona. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes available to the public other than through a breach of this Agreement by the receiving Party; (b) is received by the receiving Party from a Third Party not subject to any confidentiality obligation in favor of the disclosing Party; or (c) is independently developed by the receiving Party without access or reference to Confidential Information of the disclosing Party.
          6.2. Obligations. The receiving Party agrees to safeguard all Confidential Information of the disclosing Party with at least the same degree of care (which in no event shall be less than reasonable care) as the receiving Party uses to protect its own Confidential Information. The receiving Party shall not use any Confidential Information of the disclosing Party for any purpose other than in furtherance of this Agreement and shall not disclose any Confidential Information of the disclosing Party except to those of its employees, consultants or representatives with a “need to know” such Confidential Information for purposes of fulfilling its obligations under this Agreement and who are bound by confidentiality obligations at least as stringent as those set forth herein. The receiving Party shall be responsible for any action or omission by any such employee, consultant or other representative as if made by the receiving Party. The receiving Party shall promptly notify the disclosing Party of any breach of this Section 6.2.
          6.3. Permitted Disclosures. Notwithstanding Section 6.2, the receiving Party may disclose Confidential Information of the disclosing Party to the extent that the receiving Party is required or requested to do so pursuant to applicable Law by any governmental authority or rules of a stock exchange; provided, however, that prior to any such disclosure, the receiving Party shall: (a) assert the confidential nature of the Confidential Information of the disclosing Party to such governmental authority or stock exchange; (b) promptly notify the disclosing Party of the governmental authority’s requirement or request to disclose; and (c) cooperate with the disclosing Party in contesting any such disclosure or obtaining a protective order, confidential treatment or the like at the expense of the disclosing Party.
          6.4. Breach. Notwithstanding any other provision of this Agreement, each Party acknowledges that any use of Confidential Information of the disclosing Party in a manner inconsistent with this Agreement, or Customer’s use of the Platform in breach of this Agreement, may cause the other Party irreparable harm for which remedies other than injunctive relief may be inadequate. Therefore, each Party agrees that the other Party shall be entitled to injunctive relief, without the posting of a bond and without proof of actual damages, to restrain such use in addition to any other remedy available under applicable Law.

7. REPRESENTATIONS AND WARRANTIES.

          7.1. Licensor Warranties. Kona represents and warrants to Customer that the Platform and the Services shall perform materially in accordance with the Documentation. As Customer’s sole and exclusive remedy in the event of a breach of such warranty, Kona shall use commercially reasonable efforts to correct any failure to comply with such warranty.
          7.2. Customer Warranties. Customer represents and warrants to and covenants with Kona that: (a) Customer has the right to provide the Customer Data to Kona and to permit Kona to access any Customer Systems that host any Customer Data, for the purposes of this Agreement; and (b) Customer will not, and will not permit its Users or other personnel to make employment decisions with respect to any personnel or prospective personnel of Customer in reliance on any Output.
          7.3. Disclaimer. KONA DOES NOT WARRANT THAT THE PLATFORM OR SERVICES WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION, OR THAT KONA WILL CORRECT ANY ERROR. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE”. KONA AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM OR SERVICES FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.

8. LIMITATION OF LIABILITY.

          8.1. General. SUBJECT TO SECTION 8.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF DATA, PROFITS, REVENUES OR USE OF THE SERVICE, OR FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES OR PLATFORM.
          8.2. Damages Cap. SUBJECT TO SECTION 8.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, FOR AN AMOUNT IN EXCESS OF THE AGGREGATE FEES PAID TO KONA IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO THE MOST RECENT CLAIM UNDER THE SOW UNDER WHICH THE CLAIM AROSE.
          8.3. Exclusions. The limitations and exculpations of liability set forth in Sections 8.1 and 8.2 shall not apply in respect of: (a) any breach of Sections 2 or 6; (b) a Party’s indemnification obligations set forth in Section 9; (c) any Fees owed hereunder; or (d) a Party’s infringement of the other Party’s intellectual property rights, but shall otherwise apply to the maximum extent permitted by applicable Law. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS AND EXCULPATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE AN ESSENTIAL BASIS OF THE BARGAIN AND THAT, ABSENT SUCH LIMITATIONS AND EXCULPATIONS, THE FEES WOULD HAVE NECESSARILY BEEN MUCH HIGHER.
          8.4. Limit on Bringing Claims. ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE EVENTS GIVING RISE TO SUCH CLAIM.

9. INDEMNIFICATION.

          9.1. Customer Indemnification. Subject to Section 9.4, Customer hereby agrees to defend, indemnify and hold harmless Kona and its Affiliates and their respective principals, partners, members, managers, trustees, beneficiaries, directors, officers, stockholders, representatives, and the successors and assigns of each of the foregoing, for, from and against any and all Losses suffered or incurred by any of them directly or indirectly arising from or in connection with: (a) any death or bodily injury of any person (including any Customer employee, agent or representative); or (b) Third Party Claims arising from or related to: (i) any failure by Customer to comply with any applicable Laws; (ii) any violation of privacy rights of any Third Party, whether by or on behalf of Customer; (iii) any gross negligence or intentional misconduct of Customer; (iv) use of any Service by Customer in combination with products or software not provided by Kona; (v) any modification, alteration or enhancement of any Service not created by or on behalf of Kona with Kona’s prior written consent; or (vi) the inaccuracy, untruthfulness or breach of any representation, warranty or covenant set forth in Section 7.2.
          9.2. Kona Indemnification. Subject to Sections 9.3 and 9.4, Kona hereby agrees to defend, indemnify and hold harmless Customer and its Affiliates and their respective principals, partners, members, managers, trustees, beneficiaries, directors, officers, stockholders, representatives, and the successors and assigns of each of the foregoing, for, from and against any and all Losses suffered or incurred by any of them directly or indirectly arising from or in connection with Third Party Claims arising from or related to: (a) the gross negligence or intentional misconduct of Kona; or (b) the Platform infringing a United States patent, copyright, trademark or trade secret of such Third Party. If Customer’s use of the Platform is, or in Kona’s opinion is likely to be, found to infringe, Kona may, in its sole discretion: (i) modify the infringing element of the Platform to be non-infringing without materially degrading the functionality of the Platform; (ii) procure for Customer the right to continue using the Platform; or (iii) terminate the affected SOW and refund to Customer the pro rata portion of any prepaid Fees associated with the Platform for any unused portion of the Term for the affected SOW. THIS SECTION 9.2 SETS FORTH KONA’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE PLATFORM OR SERVICES.
          9.3. Exceptions. The defense and indemnification obligations of Kona shall not apply to the extent the alleged infringement arises out of: (a) use of any Service by Customer in combination with products or software not provided by Kona; (b) any modification, alteration or enhancement of any Service not created by or on behalf of Kona with Kona’s prior written consent; (c) failure to implement the latest release of the Platform, or (d) any matter indemnified by Customer in Section 9.1.
          9.4. Indemnity Conditions. As a condition to the indemnity obligations of a Party hereunder, the indemnified party shall: (a) provide prompt notice of any indemnifiable claim; (b) tender the defense of such claim to the indemnifying Party at the indemnifying Party’s request; (c) cooperate with the indemnifying Party in the defense of such claim at the indemnifying Party’s expense; and (d) not settle or compromise any such claim without the consent of the indemnifying Party. Customer will immediately inform Kona as soon as Customer becomes aware of any threatened or actual Claim by any Third Party relating to the Platform or Services. The indemnifying Party shall pay all Losses incurred by the indemnified Party in connection with any such Claim.

10. TERM; RMINATION.

          10.1. Term. This Agreement commences on the SOW Effective Date of the first SOW and continues until the date that is the one (1) year anniversary of the SOW Effective Date for the first SOW or until such later date as there is no then-active SOW.
          10.2. Termination for Cause. This Agreement may be terminated by either Party if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days after notice of such breach, effective as of the date set forth in such notice.
          10.3. Irrevocability. Customer’s order for Services as set forth in a SOW is irrevocable in all respects, subject only to termination in accordance with this Agreement. By executing the SOW, Customer agrees to pay all Fees set forth therein for the Term. In the event that Customer fails to pay any Fees or other amount payable to Kona hereunder when due, Kona may immediately suspend the provision of Services until Customer has paid all past-due and outstanding amounts in full.
          10.4. Effect of Termination. Upon termination of this Agreement, Customer will immediately cease use of the Platform and promptly return or destroy all copies of the Documentation. Each Party will return or destroy any Confidential Information of the other Party promptly upon termination of this Agreement.
          10.5. Survival. Sections 1, 2, 4, 5, 6, 7.3, 8, 9, 10.3, 10.4, 11 and 12 will survive termination of this Agreement or any SOW.

11. ARBITRATION.

          11.1. Scope; Governing Rules. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”), including, if appropriate, the International Commercial Arbitration Supplementary Procedures.
          11.2. Selection of Arbitrator. There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Rules.
          11.3. Proceedings. The seat or place of arbitration shall be San Francisco, California, USA. The arbitration shall be conducted and the award shall be rendered in the English language The award rendered by the arbitrator shall be final and binding on the Parties and may be entered and enforced in any court having jurisdiction, and any court where a Party or its assets is located (to whose jurisdiction the parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable.
          11.4. Confidentiality. Except as may be required by law, neither a Party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both Parties, unless to protect or pursue a legal right.
          11.5. Interim Relief. Notwithstanding anything to the contrary in this Section 11, Customer and Kona shall each have the right to apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other similar interim or conservatory relief, as necessary, pending resolution under the arbitration procedures set forth in this Section 11. Nothing in the preceding sentence shall be interpreted as limiting the powers of the arbitrator with respect to any dispute subject to arbitration under this Agreement.

12. MISCELLANEOUS.

          12.1. Notices. Any communication, demand, approval, consent or other notice from one Party to the other Party required to be given under this Agreement shall be in writing, sent to the other Party at the address set forth on the applicable SOW and shall be effective: (a) on personal delivery; (b) five (5) days after delivery by certified mail, postage prepaid and return receipt requested; (c) two (2) business days after being sent via internationally recognized courier service; or (d) the next business day after being sent via email with a copy sent by one of the other previous means. personally delivered, sent via certified mail, postage prepaid and return receipt requested, sent via internationally recognized courier service or sent via email with a copy sent by one of the other previous means. Either Party may from time to time designate a new address to the other Party in writing, and no change of address shall be binding upon the other Party until notice thereof is received by such Party. Each notice shall be in English. This Section 12.1 will not apply to communication between the Parties made in the ordinary course of business.
          12.2. Force Majeure. Except for Customer’s payment obligations, neither Party is responsible for any delay or failure to perform resulting from any cause beyond such Party’s reasonable control, which may include, but is not limited to, any act of God, fire, hurricane, flood, terrorism, act of war, labor disturbance, telecommunications failure, utility failure, network failure, pandemic, act of governmental authorities or change of applicable Laws.
          12.3. Assignment. Customer is not permitted to transfer or assign (by operation of law or otherwise) any of its rights or obligations under this Agreement without the prior consent of Kona, which consent will not be unreasonably withheld, delayed or denied. Any such transfer or assignment without Kona’s consent will be void and of no force and effect.
          12.4. Publicity. Customer hereby grants to Kona a worldwide, non-exclusive, royalty-free, non-transferable license to use Customer’s trademarks, service marks or logos for the purpose of identifying Customer as a Kona customer in order to promote the Platform, except as Customer otherwise notified Kona at sid@heykona.com. Except as set out in this Section, neither Party will use the name of the other Party in publicity releases or similar activity without the consent of the other Party.
          12.5. Severability. If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.
          12.6. Independent Contractor. Each Party will act as an independent contractor and employees of one Party will not be considered to be employees of the other Party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither Party may make any commitments binding on the other Party, nor make any representation that they are acting for, or on behalf of, the other Party.
          12.7. Governing Law and Venue. This Agreement will be governed by, and construed in accordance with, the Laws of the State of California, USA.
          12.8. Interpretation. Captions and headings contained in these Terms have been included for ease of reference and convenience and shall not be considered in interpreting or construing these Terms. Except where the context expressly requires otherwise: (a) the use of the singular will be deemed to include the plural (and vice versa); (b) the words “include”, “includes”, “including” or “e.g.” will be deemed to be followed by the phrase “without limitation”; (c) the word “will” will be construed to have the same meaning and effect as the word “shall”; (d) the words “herein”, “hereof” and “hereunder”, or any word of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, including each SOW that references these Terms; and (e) the term “or” will be interpreted in the inclusive sense commonly associated with the term “and/or”.
          12.9. Entire Agreement. This Agreement, including these Terms and any SOWs, and all appendices, exhibits, schedules and attachments thereto and hereto constitute the sole and complete agreement between the Parties with regard to its subject matter. This Agreement may not be modified or amended except by a writing signed by both Parties, and supersedes all proposals, understandings, representations, prior agreements or communications relating to the Platform and the subject matter of this Agreement. This Agreement will not be construed against the drafting Party, but instead will be construed as if both Parties prepared this Agreement.