Terms and Conditions

PLEASE READ CAREFULLY: THE INDIVIDUAL ACCEPTING THESE TERMS AND CONDITIONS (THE “AGREEMENT”) ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (“CUSTOMER”), REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS FULL AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. UNLESS THE CUSTOMER HAS A SEPARATE WRITTEN AGREEMENT FOR THE PURCHASE AND USE OF REKEN PRODUCT(S) AND SERVICES, THIS AGREEMENT GOVERNS CUSTOMER’S RIGHTS TO USE THE REKEN PRODUCT(S) AND SERVICES. BY ASSENTING TO THIS AGREEMENT (BY CLICKING, CHECKING A BOX, ACCEPTING A QUOTE, PLACING AN ORDER, OR DOWNLOADING, INSTALLING, ACTIVATING, USING, OR OTHERWISE ACCESSING REKEN PRODUCT(S)), CUSTOMER ACCEPTS THIS AGREEMENT, WHICH WILL BE DEEMED A BINDING CONTRACT BETWEEN CUSTOMER AND REKEN CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS LOCATED AT 2261 MARKET STREET, SUITE 5475, SAN FRANCISCO, CA 94114, ON BEHALF OF ITSELF AND ANY AFFILIATES PERFORMING HEREUNDER (COLLECTIVELY, “REKEN”). IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN DO NOT ACCEPT THIS AGREEMENT, AND CUSTOMER WILL NOT BE AUTHORIZED TO ACCESS OR USE THE REKEN PRODUCT(S) AND SERVICES. THESE TERMS AND CONDITIONS ARE BINDING AS OF THE EARLIEST OF THE DATE THAT CUSTOMER ACCEPTS THE AGREEMENT, THE DATE SET FORTH IN AN ORDER, OR THE DATE ON WHICH CUSTOMER DOWNLOADS, INSTALLS, ACTIVATES, USES, OR OTHERWISE ACCESSES ANY REKEN PRODUCT(S) AND SERVICES (“EFFECTIVE DATE”).

1. Definitions.

“Affiliate” means any entity that a party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).

“Aggregated Data” means any data that has been aggregated so that it is not identifiable or attributable to Customer or any of its Authorized Users and may include data based on Customer’s use of the Product.

“Analytics Data” means any technical, statistical or analytical data; correlative and/or contextual data; output from analytics which are periodically gathered or aggregated in connection with Customer use of the Product, including but not limited to data generated in connection with Customer’s access, use and configuration of the Product and data derived from it (e.g., interacting with the Product), but which excludes any data that could be used to identify Customer or any of its Authorized Users.

“Applicable Data Protection Laws” means any laws that regulate the processing, privacy or security of Customer Personal Data and that are directly applicable to each respective party in the context of Reken processing Customer Personal Data.

“Authorized User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to access, use, download, deploy, or install a Product.

“Customer” means, as the context requires, in addition to the entity identified above, any Customer Affiliate that places an Order under these Reken Terms and Conditions, uses or accesses any Product hereunder, or benefits from the Customer’s use of the Product.

“Customer Data” means all data, information, records and other content provided, uploaded, transmitted, inputted, edited, authored, or otherwise submitted by Customer or its Authorized Users under this Agreement in connection with the Product. Customer Data may include Personal Data, including, but not limited to, names and email addresses. Additional Customer Data types include, without limitation, metadata concerning communications sent and received by Customer’s Authorized Users, contents of suspicious communications submitted to the Product, and signals of compromise from Authorized Users devices. Customer Data does not include any Reken Data or publicly available data.

“Documentation” means Reken’s end-user technical documentation included with the Product.

“Error” means a reproducible failure of a Product to perform in substantial conformity with its applicable Documentation which causes a material disruption of Customer’s Endpoint.

“Fees” means, with respect to any Order, the amount payable by Customer to Reken or a Reken Reseller for a Product as specified on said Order.

“Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (i) trademarks and service marks, including all applications and registrations and the goodwill connected with the use of and symbolized by the foregoing; (ii) copyrights, including all applications and registrations related to the foregoing; (iii) trade secrets and confidential know-how; (iv) patents and patent applications; (v) websites and internet domain name registrations; and (vi) computer programs, operating systems, applications, firmware, and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof (“Software”).

“Internal Use” means access or use solely for Customer’s and its Affiliates’ own internal information security purposes. By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than Customer or its Affiliates, or (ii) in any event, for the development of any product or service. Internal Use is limited to access and use by Customer’s and its Affiliates’ Authorized Users.

“Machine-Generated Data” means any data generated by artificial intelligence or machine learning models in connection with Customer’s use of the Product as well as metadata, learnings, models, algorithms, and other results derived from the processing or analysis of Customer Data by or on behalf of Company. For clarity, Machine-Generated Data excludes any data that could be used to identify Customer or any of its Authorized Users.

“Reken Data” means all (i) Reken Confidential Information; (ii) Analytics Data, (iii) Aggregated Data; (iv) Machine-Generated Data, and (v) Threat Data.

“Object Code” means a form of software in a language that a computer can execute directly but is not generally readable by humans without reverse assembly, reverse compiling or reverse engineering.

“Order” means any purchase order or other ordering document accepted by Reken or a Reseller that identifies the following ordered by Customer: Product, Product quantity based on Reken’s applicable license metrics, price and Subscription/Order Term.

“Personal Data” means any information that relates to an identified or identifiable natural person and which is protected as “personal data”, “personal information” or “personally identifiable information” under Applicable Data Protection Laws.

“Product” means the Reken software ordered by Customer, any Documentation, and any Updates thereto that may be made available to Customer from time to time by Reken.

“Product Services” means the standard technical support services for a Product provided by Reken as specified.

“Reseller” means an entity that purchases a Product from Reken for purposes of resale to Customer.

“Subscription/Order Term” means the period of time set forth in the applicable Order during which Customer is authorized by Reken to access and use a Product.

“Threat Data” means any malware, spyware, virus, worm, Trojan horse, indicators of compromise, threat behaviors, other potentially malicious or harmful code or files, URLs, DNS data, network telemetry, commands, processes or techniques, metadata, or other information or data that is related to potentially unauthorized third parties associated with the Threat Data and is collected or discovered during the course of using Reken Product(s), excluding any such information or data that identifies Customer or to the extent that it includes Personal Data.

“Updates” means any correction, update, upgrade, patch, or other modification or addition made by Reken to a Product and provided to Customer by Reken from time to time on an as available basis. Updates do not include additional functionality which may be separately licensed by Reken.

2. Affiliates, Orders and Payment.

   1. Affiliates. Any Affiliate purchasing hereunder, or using or accessing any Product hereunder, or benefitting from the Customer’s use of a Product, will be bound by and comply with all terms and conditions of this Agreement. The Customer entering into these Reken Terms and Conditions will remain responsible for Customer’s Affiliates’ acts and omissions unless Customer’s Affiliate has entered into its own agreement with Reken.

   2. Direct Orders. Customer may purchase Products by submitting an Order directly to Reken. Reken will not be obligated to provide any Products until the applicable Order for those Products has been accepted by Reken. For each Order (including renewals), Customer shall issue a purchase order that incorporates the applicable Reken quote by reference (“Purchase Order”).

   3. Reseller Orders. To place an Order through a Reseller, Customer shall provide the Reseller with a purchase order (or other similar document acceptable to Reseller), in response to a valid quote from the Reseller. Any Order placed through a Reseller is subject to, and Reken’s obligations and liabilities to Customer are governed by, this Agreement, with the exception of those set forth in Section 2.2 and Section 2.5 (Payment and Taxes). All terms related to pricing, billing, taxes, invoicing and payment shall be addressed exclusively between Customer and Reseller.

   4. Orders. If Orders are submitted on forms other than Reken’s, then only transaction-specific terms stating the Products ordered, quantity, price, Subscription/Order Term, and billing/provisioning contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer or Reseller purchase order) will have any force or effect unless a particular Order is executed by an authorized signer of Reken and returned to Customer (or the applicable Reseller). If any such Order is so executed and delivered, then only those specific terms on the face of such Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein and only with respect to those Products ordered on such Order. Orders are non-cancellable.

   5. Payment and Taxes. Customer will pay the Fees for Products to the Reseller or Reken as set forth in the applicable Order. For Orders placed with Reken and unless otherwise expressly set forth on the Order, signed by Reken, Customer will pay the undisputed fees and amounts stated on each Order within 30 days after receipt of the applicable invoice. Failure to timely pay any amounts due may result in Reken revoking Customer’s access and use rights or otherwise suspending the Product. Except as otherwise expressly provided in this Agreement, all fees and other amounts are non-refundable. Fees are exclusive of any applicable sales, use, value added, withholding, and other taxes, however designated. Customer shall pay all such taxes levied or imposed by reason of Customer’s purchase of the Products and the transactions hereunder, except for taxes based on Reken’s income or with respect to Reken’s employment of its employees.

3. Access, Use and Restrictions.

   1. Evaluation. If Reken approves Customer’s evaluation use of a Reken Product (“Evaluation Product”), the terms herein applicable to Products also apply to evaluation access and use of such Evaluation Product, except for the following different or additional terms: (i) the duration of the evaluation is as mutually agreed upon by Customer and Reken, provided, that either Reken or Customer can terminate the evaluation at any time upon written (including email) notice to the other party; (ii) the Evaluation Product is provided “AS-IS” without warranty of any kind, and Reken disclaims to full extent of the law all warranties, support obligations, and other liabilities and obligations for the Evaluation Product; and (iii) Customer’s access and use is limited to Internal Use only.

   2. Access & Use Rights. Subject to the terms and conditions of this Agreement (including Reken’s receipt of applicable fees), Reken grants Customer, under Reken’s Intellectual Property rights in and to a Product, a non-exclusive, non-transferable, non-sublicensable license to access and use a Product in accordance with any applicable Documentation solely for Customer’s Internal Use during the applicable Subscription/Order Term. Customer’s access and use is limited to the quantity in the applicable Order. If Customer purchases a subscription to a Product with a downloadable Object Code component(s), Customer may, during the Subscription/Order Term, install and run multiple copies of the Object Code component(s) solely for Customer’s and Customer’s Affiliates’ Internal Use up to the maximum quantity in the applicable Order.

   3. Restrictions. The access and use rights set forth in Section 3.2 (Access & Use Rights) do not include any rights to, and Customer will not, with respect to any Product (or any portion thereof): (i) employ or authorize anyone other than Customer or Customer Affiliates to use or view the Product or Documentation, or to provide management, hosting, or support for a Product; (ii) alter, publicly display, translate, create derivative works of or otherwise modify a Product, except as necessary to exercise Customer’s rights pursuant to this Agreement; (iii) rent, lease, lend, sell, encumber, sublicense, assign, distribute, publish, transfer or otherwise make available the Product or Documentation, or any portion thereof, to any third party who is not an Authorized User, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iv) allow third parties to access or use a Product; (v) reverse engineer, decompile, disassemble or otherwise attempt to derive the source code (if any) for a Product (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to a Product or its related systems or networks without Reken’s prior written consent, for the avoidance of doubt no restriction is made hereunder with respect to any open source software included in a Product for which such restrictions would violate the terms of said open source software license; (vi) remove or alter any notice of proprietary right appearing on a Product; (vii) upload personal data as defined in the General Data Protection Regulation (GDPR) Regulation (EU) 2016/679, or similar data protection or privacy laws in applicable jurisdictions, without prior authorization from the data owner, (viii) submit publicly-visible information that is defamatory, obscene, threatening, abusive or hateful, as determined by Reken in its sole discretion, or (ix) cause, encourage or assist any third party to do any of the foregoing. Customer agrees to use a Product in accordance with laws, rules and regulations directly applicable to Customer, not infringe or violate the intellectual property rights of any third party, and acknowledges that Customer is solely responsible for determining whether a particular use of a Product is compliant with such laws.

   4. Installation and User Accounts. Customer is responsible for the security for each account of an Authorized User, and each account shall only be authenticated to a single individual. Customer shall notify Reken if Customer learns of any unauthorized access or use of Customer’s user accounts or passwords for a Product.

   5. Third-Party Software. Reken may use certain third-party software in a Product, including what is commonly referred to as open source software. Under some of these third-party licenses, Reken may be required to provide Customer with notice of the license terms and attribution to the third party. Licensing terms and attributions for such third-party software will be available upon request. Reken shall ensure that any subcontractors or third parties with access to Customer Data are bound by written agreements imposing privacy and data security obligations no less stringent than those in this Agreement.

   6. Ownership & Feedback. Product(s) and Product Services are made available for use or licensed, not sold. Reken owns and retains all right, title and interest (including all Intellectual Property rights) in and to the Products. Customer may provide Reken with suggestions, comments and feedback with regard to the Offerings (collectively, “Feedback”). Customer hereby grants Reken a non-exclusive, worldwide, perpetual, irrevocable, royalty-free and fully-paid up license (with the right to sublicense) to use and disclose the Feedback in any manner and to display, perform, copy, make, have made, use, sell, offer to sell, import, and otherwise dispose of products embodying the Feedback in any manner and via any media, without reference to the source, including, without limitation, the testing, development, maintenance and improvement of the Offerings. Any use of Customer feedback or suggestions will be at Reken’s sole discretion, and Customer shall have no responsibility or liability to Reken or any third party for any such use.

   7. Data Privacy. To the extent Reken processes Personal Data on behalf of Customer under Applicable Law, Reken shall do so only at the direction of Customer and acting as a data processor. For clarity, Reken may use Customer Data for the purpose of: (i) Product operation, including analyzing, characterizing, deflecting, attributing, warning of, and/or responding to threats against Customer and others, (ii) analyzing trends or benchmarking system performance, (iii) providing, maintaining or improving Reken Solutions; and (iv) other purposes consistent with applicable law.

   8. Customer Data. Customer owns all right, title, and interest in all Customer Data. During the Subscription/Order Term, Customer grants Reken a worldwide, non-exclusive, limited license to access, process, transmit, store, use, and display Customer Data, including the content of emails and communications submitted to the Product(s), in connection with the performance of Reken’s obligations under the Agreement, including for the purpose of providing threat detection, risk identification, cybersecurity services, and related communication services. Reken will access and process only Customer Data to which the Customer grants access to the Product(s) or that Customer elects to submit to the Product(s) for review or processing. Customer acknowledges and agrees that Reken may use de-identified Customer Data, including both malicious and non-malicious data, to develop, train, and improve its cybersecurity models, algorithms, and Product(s), provided that such use does not disclose or identify Customer or any Authorized User. Customer represents and warrants that it has all rights and permissions necessary to transfer Customer Data and grant Reken access to such Customer Data as contemplated herein. Customer further represents and warrants that it has obtained the consents and legal rights necessary to provide Personal Data to the Product(s).

4. Confidentiality.

   1. Definitions. In connection with this Agreement, each party (“Recipient”) may receive Confidential Information of the other party (“Discloser”) or third parties to whom Discloser has a duty of confidentiality. “Confidential Information” means non-public information in any form that is in the Recipient’s possession regardless of the method of acquisition that the Discloser designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information shall not include information that is: (i) in or becomes publicly available (other than by disclosure by Recipient in violation of this Agreement); (ii) previously known to Recipient without an obligation of confidentiality and demonstrable by the Recipient in writing; (iii) independently developed by Recipient without use of Discloser’s Confidential Information; or (iv) rightfully obtained by Recipient from third parties without an obligation of confidentiality.

   2. Restrictions on Use. Except as permitted under Section 4.3 (Exceptions), Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its employees, and contractors, including without limitation, counsel, accountants, and financial advisors (collectively, “Representatives”), its Affiliates and their Representatives, subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall not use Discloser’s Confidential Information for any purpose other than as set forth in this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information. If Recipient become aware of the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information while in Recipient’s control, Recipient shall promptly provide Discloser with notice thereof.

   3. Exceptions. Recipient may disclose Discloser’s Confidential Information: (i) to the extent required by applicable law or regulation; (ii) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (iii) in connection with any regulatory report, audit, or inquiry; or (iv) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, Recipient shall, to the extent legally permitted: (a) give Discloser prompt written notice of such requirement or request prior to such disclosure; and (b) at Discloser’s cost, a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to Recipient making such disclosure. If the Recipient is legally required to disclose the Discloser’s Confidential Information as part of: (x) a legal proceeding to which the Discloser is a party but the Recipient is not; or (y) a government or regulatory investigation of the Discloser, the Discloser shall pay all of the Recipient’s reasonable and actual out of pocket legal fees and expenses (as evidenced by reasonably detailed invoices) and will reimburse the Recipient for its reasonable costs and fees of compiling and providing such Confidential Information, including, a reasonable hourly rate for time spent preparing for, and participating in, depositions and other testimony, unless Recipient’s performance under the terms of the Agreement is a material element of the proceeding or investigation against the Recipient.

   4. Destruction. Upon Discloser’s written request, Recipient shall destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.

   5. Equitable Relief. Each party acknowledges that a breach of this Section 4 (Confidentiality) may cause the other party irreparable injury and damage. Therefore, each party agrees that the non-breaching party may seek injunctive relief in a court of competent jurisdiction, in addition to any other rights and remedies which may be available to the injured party at law or in equity without the posting of a bond.

5. Warranties & Disclaimer.

   1. No Warranty for Pre-Production/Evaluation Versions. Any pre-production or evaluation feature or version of a Product provided to Customer and identified as such in the applicable Order, or if not so identified is understood by the nature and character of feature or version to be pre-production or evaluation, is experimental and provided “AS IS” without warranty or liability of any kind and will not create any obligation for Reken to continue to develop, productize, support, repair, offer for sale, or in any other way continue to provide or develop any such feature or version. Customer agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Reken regarding future functionality or features.

   2. Product Warranty. If Customer has licensed a Product, Reken warrants to Customer during the applicable Subscription/Order Term that: (i) the Product will substantially operate without Error; and (ii) Reken used industry standard techniques to prevent the Product at the time of delivery from injecting malicious software viruses into Customer’s Endpoints where the Product is installed. Customer must notify Reken of any warranty claim during the Subscription/Order Term. Customer’s sole and exclusive remedy and the entire liability of Reken for its breach of this warranty will be for Reken, at its own expense, to do at least one of the following: (a) use commercially reasonable efforts to provide a work-around or correct such Error within a commercially reasonable time, including providing an Update or requiring Customer to install a newer version that corrects the Error (b) procure a substitute Product, that substantially conforms to the non-performing function of the Product or (c) terminate Customer’s license to access and use the applicable non-conforming Product and refund the prepaid fee prorated with such pro-ration based on the number of days remaining in the portion of the Subscription/Order Term for the specific Product which Customer has paid fees but that have not occurred as a result of such termination. Reken shall have no obligation regarding Errors reported after the applicable Subscription/Order Term.

   3. Exclusions. The express warranties do not apply if the applicable Product (i) has been modified, except by Reken or by Customer or a third party at Reken’s written direction, (ii) has not been installed, used, or maintained in accordance with this Agreement or Documentation, or (iii) is non-conforming due solely to a failure to use an applicable Update, (iv) due to causes that are external to the Reken Product or otherwise beyond Reken’s reasonable control, including, without limitation, natural disasters, fire, smoke, water, earthquakes, lightening, electrical power fluctuations or failures, or hardware or software not provided by Reken. If any part of a Product references websites, hypertext links, network addresses, or other third-party locations, information, or activities, such information is provided as a convenience only.

   4. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 5, REKEN AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REKEN AND ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE SOLUTIONS. EXCEPT AS PROVIDED IN THIS SECTION 5, THERE IS NO WARRANTY THAT THE SOLUTIONS WILL BE ERROR FREE, OR THAT THEY WILL OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS. THE SOLUTIONS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. NEITHER ARE THE SOLUTIONS FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE. CUSTOMER AGREES THAT IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE SAFE USE OF A SOLUTION IN ANY APPLICATIONS AND INSTALLATIONS. REKEN DOES NOT WARRANT ANY THIRD-PARTY PRODUCTS OR SERVICES.

6. Indemnification.

   1. Reken’s Obligation. Reken will (i) defend its Customer against any claim asserted in a legal proceeding by a third party alleging that a Product infringes a third party’s registered copyrights, misappropriates such third party’s trade secrets recognized as such under the Uniform Trade Secrets Act or infringes such third party’s valid U.S. patent(s) issued as of the Effective Date (a “Claim”) and (ii) subject to Section 8.3, pay any damages finally awarded against Customer for such Claim by a court of competent jurisdiction, or any amount agreed to by Reken in settlement of such Claim; provided that Customer promptly notifies Reken of any such Claim in writing (a delay in providing notice does not excuse these obligations unless Reken is prejudiced by such delay), Reken is given sole and exclusive control over the defense and settlement of such Claim (however, Reken will not settle any Claim in a manner that requires Customer to admit fault or attributes liability to Customer without Customer’s prior written consent), and Customer provides all information and cooperation requested by Reken, at Reken’s expense, in connection with the defense and settlement of such Claim.

   2. Remedies. If any portion of a Reken Product becomes, or in Reken’s opinion is likely to become, the subject of a Claim, Reken may, at its option, (i) procure for Customer the right to continue using the Product, (ii) replace or modify the Product to make it non-infringing or reduce the likelihood of infringement, such that the replacement or modification provides substantially the functionality of the Product that is replaced or modified, or (iii) terminate this Agreement by providing Customer written notice thereof; provided, however, that if Reken exercises such termination right, Reken will refund to Customer a pro-rata portion of the Fees paid by Customer for the Product subject to such Claim (with such pro-ration based on the number of days remaining in the Subscription/Order Term had Reken not so terminated this Agreement).

   3. Exclusions. Reken shall have no obligations under this Section to the extent the claim is based upon or directly arises out of: (i) any modification to the applicable Product not made by Reken or at the written direction of Reken; (ii) any combination or use of the applicable Product with or in any third-party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use and would have been avoided but for such combination or use; (iii) Customer’s continued use of the allegedly infringing Product after being notified by Reken to cease usage of the allegedly infringing Product due to the infringement claim or after being provided a modified version of the Product by Reken at no additional cost that is intended to address such alleged infringement, (iv) Customer’s failure to use the Product in accordance with the applicable Documentation; (v) Customer’s use of the Product outside the scope of the rights granted under this Agreement; and/or (vi) any modification to or use of the Product which is based upon Customer Data or other material provided by Customer to Reken, to the extent that such claim is based upon such Customer Data or other material .

   4. Exclusive Remedy. THE REMEDIES SPECIFIED IN THIS SECTION CONSTITUTE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, AND REKEN’S ENTIRE LIABILITY, WITH RESPECT TO ANY THIRD-PARTY CLAIM OF INFRINGEMENT OF THAT THIRD PARTY’S INTELLECTUAL PROPERTY.

7. Limitation of Liability.

   1. Exclusions to Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR ANY LOST PROFITS, REVENUE, OR SAVINGS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE;

   2. Sublimit on Monetary Damages. EXCEPT FOR LIABILITY FOR ANY AMOUNTS PAID OR PAYABLE UNDER SECTION 7 (INDEMNIFICATION); CUSTOMER’S PAYMENT OBLIGATIONS; DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT; AND/OR ANY INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID OR PAYABLE TO REKEN FOR THE RELEVANT SOLUTION, DURING THAT SOLUTION’S 12 MONTH SUBSCRIPTION TERM THAT GAVE RISE TO THE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT.

   3. Total Aggregate Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE, CUMULATIVE, TOTAL LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM, LOSS OR DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED TWO MILLION DOLLARS, ($2,000,000). THIS LIMITATION OF LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF TWO OR MORE CLAIMS, LOSSES, DAMAGES OR SUITS WILL NOT ENLARGE THE LIMIT IN THIS SECTION 7.3.

   4. Acknowledgment. THE PARTIES ACKNOWLEDGE THAT THE FEES SPECIFIED IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF ITS LIABILITY AND THE WARRANTY DISCLAIMERS CONTAINED HEREIN.

8. Compliance with Laws. Each party agrees to comply with all U.S. federal, state, local and non-U.S. laws directly applicable to such party in the performance of this Agreement, including but not limited to, applicable export and import, anti-corruption, employment and if applicable, the General Data Protection Regulation (GDPR) Regulation (EU) 2016/679, the UK GDPR, or similar privacy laws in any relevant jurisdiction. Customer acknowledges and agrees the Solutions shall not be used, transferred, or otherwise exported or re-exported to regions that the United States and/or the European Union maintains an embargo or comprehensive sanctions (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity subject to individual prohibitions (e.g., parties listed on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders) (collectively, “Designated Nationals”), without first obtaining all required authorizations from the U.S. government and any other applicable government. Customer represents and warrants that Customer is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National. Reken represents and warrants that Reken is not located in, or is under the control of, or a national or resident of, an Embargoed Country or Designated National.

   1. Anti-Bribery. In connection with its obligations under this Agreement, Reken shall comply with all applicable anti-bribery laws and regulations.

9. Termination. This Agreement shall remain effective until termination in accordance with this Section or as otherwise specified herein.

   1. Upon delivery of reasonable notice based upon the risk of the situation, Reken may immediately suspend Customer’s access to, or use of, the Product if Reken reasonably believes that there is a significant threat to the security, integrity, functionality, or availability of the Product or any content, data, or applications in the Product.

   2. Any party (“Non-defaulting Party”) may terminate this Agreement by delivering written notice of a material breach, with a 30-day cure period, to the other party (“Defaulting Party”), unless the breach is cured within the 30-day cure period. Prior to termination and subject to the terms of this Agreement, Customer shall have the right to access and download Customer Data available per the Customer’s purchased Product and data retention period in a manner and in a format supported by the Product.

   3. This Agreement may also be terminated forthwith by any Non-defaulting Party by giving notice in writing to the Defaulting Party if at any time the Defaulting Party shall become insolvent or shall go into dissolution or into liquidation (except for a voluntary liquidation for the purposes of reconstruction or amalgamation upon terms previously approved in writing by the Non-defaulting Party) or a receiver or examiner is appointed to the Defaulting Party or upon the happening of a like event whether at the direction of an appropriate regulatory agency or a court of competent jurisdiction or otherwise the Defaulting Party breaches any laws or regulations or becomes subject to a lawsuit, regulatory action, government investigation, allegation, demand, claim, request, inquiry, sanction, arbitration or proceeding that, in each case the Non-defaulting Party reasonably determines could cause the Non-defaulting Party reputational harm.

   4. Upon termination of this Agreement for any reason: (a) all Customer’s access and use rights granted in this Agreement will terminate; and (b) Customer must promptly cease all use of Product and de-install any Product software installed on Customer’s systems. Sections 3, 4, 7, 8, 9, and 10 shall survive expiration or termination of this Agreement for any reason.

10. General.

    1. Entire Agreement. This Agreement (together with all Orders and exhibits) constitutes the entire agreement between Customer and Reken concerning the subject matter of this Agreement and it supersedes all prior and simultaneous proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter. It is expressly agreed that the terms of this Agreement shall supersede any terms in any procurement Internet portal or other similar non-Reken document and no such terms included in any such portal or other non-Reken document shall apply to the Agreement or Product ordered. Reken’s obligations and liabilities to Customer for Orders through a Reseller are subject to, and are governed by, this Agreement. Reken is not obligated under any Reseller’s agreement with Customer unless an authorized signer of Reken executes such agreement. This Agreement shall not be construed for or against any party to this Agreement because that party or that party’s legal representative drafted any of its provisions.

    2. Authority. The undersigned each hereby represent and warrant that they have full legal capacity, authority and power to enter into the Agreement on behalf of their Party, and to bind their respective Party to the terms and conditions herein.

    3. Non-Solicit. Commencing on the Effective Date and continuing for a period of twelve (12) months after the last-to-expire or terminate Subscription/Order Term, neither party (the “Prohibited Party”) will, directly or indirectly, solicit, attempt to solicit or encourage any of the other Party’s employees, contractors or advisors to (i) terminate his or her employment with the other party, (ii) cease providing services to the other party or (iii) enter into an employment, consulting or other professional relationship with any other entity or person (including the Prohibited Party). For purposes of the foregoing, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, will not be construed as a solicitation, and the hiring of any such person who freely responds thereto will not be a breach of the foregoing.

    4. Assignment. Neither Party may assign, delegate or otherwise transfer (whether voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party. Notwithstanding the foregoing, Reken may assign this Agreement without prior consent (i) to any Affiliate and (ii) in the event of a merger, acquisition, or sale of substantially all Reken’s assets, provided the assignee agrees to be bound by the terms of this Agreement. Any attempted assignment in violation of this Section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and permitted assigns.

    5. Governing Law. This Agreement, and the rights and duties of the parties arising from this Agreement, shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, excluding its conflicts-of-law principles. The Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods shall not apply. Venue and Jurisdiction is proper in any Court of competent subject matter jurisdiction located in Wilmington, Delaware, and each party consents to personal jurisdiction therein. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its intellectual property rights.

    6. Independent Contractors; No Third-Party Rights. The parties are independent contractors. This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. No provision in this Agreement is intended or shall create any rights with respect to the subject matter of this Agreement in any third party.

    7. Waiver, Severability & Amendments. The waiver by either party of a breach or default by the other party of any provision of this Agreement will not be construed as a waiver by such party of any succeeding breach or default by the other party in the same or other provision, nor will any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any such right or remedy. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, the provision will be enforced to the maximum extent permissible in order to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties.

    8. Force Majeure. Neither party shall be liable for, nor shall either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including but not limited to, act of God or a public enemy, act of any military, civil or regulatory authority, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including an upstream server block and Internet or other networked environment disruption or outage), power or other utility, epidemic, pandemic, quarantine, or any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the control of the party and which could not have been prevented with reasonable care. The party experiencing a force majeure event shall use commercially reasonable efforts to provide notice of such to the other party.

    9. Notices. All legal notices will be given in writing to the addresses in the first introductory paragraph of this Agreement and will be effective: (i) when personally delivered, (ii) on the reported delivery date if sent by a recognized international or overnight courier, or (iii) five business days after being sent by registered or certified mail (or ten days for international mail). For clarity, purchase orders, confirmations, invoices, and other documents relating to order processing and payment are not legal notices and may be delivered electronically in accordance with each party’s standard ordering procedures.

       Notices to Reken Corporation should be sent to:

       Reken Corporation
       Attn: Legal
       2261 Market Street, Ste 5475
       San Francisco, CA 94114
       with a copy to legal@reken.ai

    10. Consent. Customer acknowledges that it has read this Agreement, understands it, and agreed to be bound by all its terms and conditions.