Last Updated as of October 1, 2023
PRODUCT(S) AND SERVICES (AS DEFINED BELOW) AND IS AN AGREEMENT BETWEEN CUSTOMER AND KAI XR.
THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER’S USE OF KAI XR
This Master Services Agreement and all referenced exhibits, hereinafter referred to as "Agreement," governs Customer’s use of Kai XR Products and Services and is entered into and made effective by and between Kai XR and Customer.
Kai XR, Inc., a corporation, incorporated under the laws of the state of Delaware, having its principal place of business at 440 N Barranca Ave #9333, Covina, CA 91723, hereinafter referred to as “Kai XR” or “Service Provider.”
The individual accepting this Agreement is accepting on behalf of a company or other legal entity and its affiliates, and represents that the individual has the authority to bind such entity and its affiliates to the Agreement’s terms and conditions. Such entity and its affiliates are hereinafter referred to as “Customer.”
Customer and Service Provider may be referred to individually as "Party" and collectively as the "Parties."
Customer accepts the terms of this Agreement, either by: 1. executing a Statement of Work or Quote that references this Agreement; 2. executing a copy of this Agreement directly; or 3. Accessing Kai XR products or services.
Article 1 - DEFINITIONS
As used in this Agreement:
- “Kai XR Product(s)” means any Subscription Services or other product or Services provided to Customer and described on a Quote.
- “Professional Services” means the services which may be further discussed and described through a Statement of Work or Quote.
- “Quote” means Service Provider’s stand order form that (i) specifies the Product(s) and other Services provided to Customer; (ii) references this Agreement; and (iii) is signed or incorporated to a signed agreement by authorized representatives of both Parties and deemed incorporated into the Agreement.
- "Services" means any combination of Professional Services or other services provided by Kai XR.
- “Statement of Work” or “SOW” means any document made between the Parties which references and incorporates the terms of this Agreement, and sets out any details of Products and Services to be provided by Service Provider or estimated or actual pricing.
- “Subscription Services” means all SaaS (software as a service) software, including Embedded Applications, and subsequent versions provided and all related documentation provided to Customer, now or in the future. Subscription Services does not include any Third Party Software.
- “Term” means the duration of the Agreement as described in Article 11 Section A.
- “User(s)” means individuals authorized by Customer who access and utilize Kai XR Product(s). Users will include authorized representatives of the Customer, teachers, students, parents, and/or other individuals as applicable to the respective Product(s).
Article 2 - KAI XR PRODUCT SUBSCRIPTION
The type of subscription applicable to the Customer will be specified in the Quote or Statement of Work.
(i) make the Subscription Services available to Customer and for applicable
(ii) provide applicable standard support for the Subscription Services to Customers and Users;
(iii) use commercially reasonable efforts to make the Subscription Services available, except for (a) planned downtime (of which Service Provider will provide electronic notice), and (b) any force majeure event as described in Article 10 Section J, internet service provider failure or delay, Third Party Software, or denial of service attack; and
(iv) provide the Services in accordance with its policies, existing laws and government regulations applicable to Service Provider’s provision of its Subscription Services to its customers generally.
All rights not expressly granted to Customer herein are expressly reserved by Service Provider.
- Compatible Platforms & Hardware. Where applicable, Customer will be responsible for obtaining and maintaining all computer hardware, and other equipment needed for access to and use of Kai XR Product(s) and Services. Customer is responsible for obtaining and maintaining an appropriate operating environment with the necessary hardware, operating system software and other items required to use and access Kai XR Product(s) and Services. Service Provider will not be responsible for any incompatibility between Kai XR Product(s) and any versions of operating systems, hardware, browsers, or other products not specifically approved in writing by Service Provider for Customer’s use with Kai XR Product(s) and Services. Service Provider will make written requirements available to Customer at Customer’s request.
- Restrictions on Subscription Services.
(i) Customers will use Kai XR Product(s) only for the internal business
purposes of Customer and not (a) to store or transmit malicious code, (b)
interfere with or disrupt the integrity or performance of Kai XR Product(s) or
any systems or networks; or © violate the regulations, policies, or
procedures of such networks networks used with the Kai XR Product(s), or
(d) attempt to gain unauthorized access to a Kai XR Product or its related
systems or networks, Kai XR data or the data of any other Kai XR customer or
(ii) Customer will ensure that its Users will not, and itself will not, whether through any affiliate, employee, consultant, contractor, agent or other third party: (a) sell, resell, distribute, host, lease, rent, license, or sublicense, in whole or in part, Kai XR Product(s); (b) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of Kai XR Product(s), in whole or in part, for any purposes otherwise; (c) write or develop any derivative works based up on Kai XR Product(s).
Customer will hold Kai XR harmless from claims for damages resulting from
Customer’s misuse of Kai XR Product(s), including Kai XR’s Intellectual Property Rights. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, Kai XR Product(s), and notify Service Provider promptly of any such unauthorized access or use. Customer will not transfer, assign, provide or otherwise make Kai XR Product(s) or Services available to any other party without the prior written consent of Service Provider. Any attempted sublicense, assignment, or transfer of any rights, duties or obligations by Customer in violation of this Agreement will be void.
Article 3 - FEES AND TAXES
- Customer agrees to pay the Service Provider in accordance with the Service Provider’s invoice terms, the fees charged for Kai XR Product(s) and related Services and/or other items ordered by Customer, together with any other charges made in accordance with this Agreement, and all applicable sales, use, or other taxes or duties, except for taxes based on Service Provider’s net income.
- Penalties: If the Customer does not pay the invoiced and required amount by the date stated in the invoice or as otherwise required by this Agreement, the Service Provider shall be entitled to:
(i) require Customer to pay for the Services, or any remaining part of the Services, in advance;
(ii) cease performance of the Product(s) and Services completely or until payment is made, at the Service Provider's sole and exclusive discretion.
- Tax Statement: Any and all charges payable under this Agreement are exclusive of taxes, surcharges, or other amounts assessed by state or federal governments. Taxes imposed upon or required to be paid by Customer or Service Provider shall be the sole and exclusive responsibility of each, respectively.
- Tax-exemption. If Customer claims tax-exempt status, Customer agrees to provide such evidence of such tax exemption to Service Provider. To the extent that such tax exemption cannot be properly claimed or does not extend to certain taxes or transactions, Customer will be responsible for any all taxes and assessments that arise from this Agreement and related transactions.
- Currency. All pricing set forth in any Kai XR Quote, Statement of Work, or invoice will be United States dollars unless otherwise stated.
Article 4 - INTELLECTUAL PROPERTY
- Intellectual Property Rights. Service Provider alone owns all rights, titles and interests, including all related Intellectual Property Rights, in and to Kai XR Product(s) and Services. This Agreement is not a sale and does not grant to Customer any rights of ownership in or related to Kai XR Product(s) and Services, or the Intellectual Property Rights owned by Service Provider. Customer will not accrue any residual rights to Kai XR Product(s) or Services, including any rights to the Intellectual Property Rights in connection therewith.
- Trademarks. The Kai XR name, the Kai XR logo, and product names associated with Kai XR Product(s) and any other marks, logos, designs, sounds, trade dress, etc. are trademarks of Kai XR, and no right or license is granted by this Agreement to their use.
- In accordance with the terms and conditions of this Agreement, the Service Provider may create certain intellectual property ("Created IP"), including, but not limited to, plans, drawings, specifications, reports, advice, analyses, designs, methodologies, code, artwork, or any other intellectual property as required to render the provision of Services to the Customer. Unless the Parties otherwise agree, any such Created IP generated by the Service Provider in connection with the provision of Services to the Customer shall belong to the Service Provider, but Service Provider hereby grants the Customer an exclusive, irrevocable, royalty-free license to use the Created IP relating to the Services provided herein for Customer's internal purposes. Customer shall not, however, be permitted to copy, modify, disseminate, or otherwise publish the Created IP and shall not allow others to do so.
- Any intellectual property provided by the Customer to the Service Provider to assist in the provision of Services, that was not created by Service Provider pursuant to this Agreement, shall belong to the Customer. Any ancillary intellectual property belonging to the Service Provider, provided or shown to the Customer in any way, that was not created by Service Provider pursuant to this Agreement, shall belong to the Service Provider.
- Use of Feedback. Customer grants to Service Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Kai XR Product(s) and Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customers or Users.
Article 5 - CONFIDENTIALITY
- The Party that receives or acquires Confidential Information (“Confidential Information”) directly or indirectly under this Agreement (the “Receiving Party”) agrees:
(i) Not to disclose or otherwise make available Confidential Information of the Party that discloses Confidential Information under the Agreement (the “Disclosing Party”) to any third party without the prior written consent of the Disclosing Party; provided, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its affiliates, and their officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations.
(ii) To use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Customer, to make use of the Services and deliverables; and
(iii) Immediately to notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of the Disclosing Party.
- If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(i) Prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(ii) Reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
- If, after providing such notice and assistance as required herein, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
- Nothing in the Agreement shall prevent either Party from using any general methodologies or know-how contained in the unaided memory of such Party’s personnel or those of its affiliates developed or disclosed under the Agreement, provided that in doing so it is not in breach of its obligations of confidentiality under this Article 5 or using any intellectual property rights of the other Party or any of its affiliates.
- Customer agrees that Service Provider may publicly refer to Customer (both in writing and orally) as a client, and may identify Customer as a client, among other places, on its website, in press releases, and in sales materials and presentations.
Article 6 - REPRESENTATIONS AND WARRANTIES
- Each Party represents and warrants to the other Party that:
(i) It is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering;
(ii) It has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
(iii) The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and
(iv) When executed and delivered by such Party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
- Customer represents and warrants that, if it is subject to bid laws, it has complied fully with such laws prior to entering into this Agreement.
- Except for the express warranties in this Agreement, each Party hereby disclaims all warranties, either express, implied, statutory or otherwise under this Agreement
- Service Provider disclaimer of other warranties. KAI XR PRODUCT(S) ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND AND KAI XR EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, POTENTIAL IMPLEMENTATION DELAYS, AND NON-INFRINGEMENT. KAI XR DOES NOT WARRANT THAT THE FUNCTIONALITY CONTAINED IN KAI XR PRODUCT(S) WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF KAI XR PRODUCT(S) OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE KAI XR PRODUCT(S) WILL BE CORRECTED. FURTHERMORE,KAI XR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF KAI XR PRODUCT(S) IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, SECURITY, OR OTHERWISE. CUSTOMER AGREES THAT THE USE OF KAI XR PRODUCT(S) IS AT CUSTOMER’S OWN RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KAI XR OR A KAI XR REPRESENTATIVE WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT FULLY APPLY TO CUSTOMER.
Article 7 - LIMITATION OF LIABILITY.
Service Provider will be liable to Customer for any special, exemplary, indirect, incidental, or consequential damages; or lost profits, lost funding, lost savings, or lost or damaged data; or for claims of a third party; arising out of this Agreement, Subscription Services, Professional Services, or other times provided, or the use or inability to use any of the foregoing, even if Service Provider has been advised of the possibility of such damages or the damages are foreseeable. In any event, in respect of any claim, demand, or action arising out of this Agreement, Customer will be limited to receiving actual and direct damages in a maximum aggregate amount equal to the charges paid by Customer to Service Provider hereunder for the applicable Kai XR Product on which the claim is based in the previous twelve (12) months. In addition, in no event will the liability of Service Provider relating to Kai XR Product(s) exceed the total amount of money paid by Customer to Service Provider during the immediately preceding twelve (12) month period with respect to the Professional Services or other services on which the claim is based.
Article 8 - INDEMNIFICATION
- Indemnification by Service Provider. Subject to Article 7 (Limitation of Liability), Service Provider hereby agrees to defend, indemnify, and hold harmless the Customer from and against any and all losses, liabilities, costs, expenses, and damages arising out of or relating to any claim by a third party alleging infringement of any Intellectual Property Rights as to a Kai XR Product, provided that Service Provider will have received from Customer (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of a Kai XR Product is enjoined, Service Provider may (i) substitute for the Kai XR Product, a substantially and functionally similar product and documentation; (ii) procure for Customer the right to continue using a Kai XR Product; or if (i) and (ii) are not possible after reasonable commercial efforts from Service Provider, then Service Provider may terminate this Agreement and credit a prorated return of unused portion of the subscription. The foregoing obligation of the Service Provider does not apply to the extent the claim arises from (i) modifications to Kai XR Product(s) by anyone other than Service Provider; (ii) combinations of Kai XR Product(s) with a product or process not provided or authorized by Service Provider; or (iii) any unauthorized use, access or distribution of Kai XR Product(s).
- Indemnification by Customer. To the extent permitted under applicable law, Customer agrees to indemnify and hold Service Provider harmless against and from any claim, demand, expenses, or losses, including reasonable legal fees (including but not limited to attorney’s fees, costs and expenses), made by any third party against Service Provider due to or arising out of: (i) Customer’s access, use of and/or connection to Kai XR Product(s); (ii) Customer’s sharing of any content obtained through access or use of Kai XR Product(s) to any third party; (iii) Customer’s violation of Article 2 (Kai XR Products Subscription), Article 4 (Intellectual Property), or Article 5 (Confidentiality).
Article 9 - TERM AND TERMINATION
- Term. This Agreement commences on the date Customer first executes it and continues until the term of all Kai XR Product(s) or Services provided under any applicable Quote or Statement of Work hereunder have expired or have been terminated.
- Term of Purchased Subscriptions. The term of each subscription will be as specified in the applicable Quote or Statement of Work specifying a start and end date. Except as otherwise specified in a Quote or Statement of Work, renewal of promotional or one-time priced subscriptions will be at Service Provider’s discretion.
- Suspension. Service Provider will have the right to suspend performance under this Agreement in the event that the Customer is notified, with email notice being sufficient, that Customer is in breach of any of its obligations under this Agreement and fails to cure the breach within five (5) days of the notice.
- Termination for Breach. Either party will have the right to terminate this Agreement in whole or in part upon thirty (30) days written notice to the other party, in the event the other party materially breaches this Agreement and fails to correct such breach within such thirty (30) day period; provided that Service Provider will have the right to terminate this Agreement immediately upon written notice that the Customer breaches any of its obligations under Article 2 (Kai XR Products Subscription), Article 4 (Intellectual Property), or Article 5 (Confidentiality). Customer further acknowledges that, as breach of the provisions of Article 4 could result in irreparable injury to Service Provider, Service Provider will have the right to seek equitable relief against any actual or threatened breach thereof, without proving actual damages.
- No Termination for Convenience. Customer is not entitled to terminate this AGreement for any reason other than for the specific reasons set out in this Agreement or as expressly mandated by law. No termination for convenience will be permitted.
- Termination for Non-Appropriation. The Parties acknowledge and agree that if Customer is a governmental entity that is bound to statutory statutory provisions that prevent it from committing to the payment of funds beyond its fiscal year, and if funds are not allocated for the Kai XR Product(s) and Services captured in an applicable Quote or Statement of Work that are the subject of this Agreement following the commencement of any succeeding fiscal year during which the Quote or Statement of Work may continue, then Customer may terminate the applicable Quote without liability for any termination charges, fees, or penalties at the end of its last fiscal period for which funds were appropriated. Customer will be obligated to pay all charges incurred through the end of the last fiscal period for which funds were appropriated. Customer will give Kai XR written notice that funds have not been appropriated (a) immediately after Customer receives notice of such non-appropriation; and (b) at least thirty (30) days prior to the effective date of such termination. Customer will not utilize this clause as a right to terminate any Quote or Statement of Work nor this Agreement for convenience. Kai XR reserves the right to seek documentation evidencing such non-appropriation of funds
- Effects of Termination. In the event of any termination of all or any portion of this Agreement, Customer will not be relieved of any obligation to pay any sums of money that have accrued prior to the date of termination. The rights and obligations of the Parties set forth in and any right or obligation of the Parties in Articles 3, 4, 6-10, and any provision which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
- Liquidated Damages. In the event that Customer enters into a multi-year Quote with Service Provider and Customer terminates the contract or any portion thereof, Customer agrees to pay Service Provider the remaining sum due to Service Provider through the stated term in the applicable Quote as liquidated damages, as actual damages being impossible to calculate. This clause will not apply in the event Customer terminates this Agreement as (i) a result of Service Provider’s breach in accordance with Section D herein, or (ii) as a result of non-appropriation of funds in accordance with Section F herein.
Article 10 - GENERAL PROVISIONS
- GOVERNING LAW: This Agreement shall be governed in all respects by the laws of the state of California and any applicable federal law. Both Parties consent to jurisdiction under the state and federal courts within the state of California. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature.
- LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
- ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased, or otherwise transferred in whole or part by either Party.
- AMENDMENTS: This Agreement may only be amended in writing signed by both Parties.
- NO WAIVER: None of the terms of this Agreement shall be deemed to have been waived by any act or acquiescence of either Party. Only an additional written agreement can constitute waiver of any of the terms of this Agreement between the Parties. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision or of the same provision on a future date. Failure of either Party to enforce any term of this Agreement shall not constitute waiver of such term or any other term.
- SEVERABILITY: If any provision or term of this Agreement is held to be unenforceable, then this Agreement will be deemed amended to the extent necessary to render the otherwise unenforceable provision, and the rest of the Agreement, valid and enforceable. If a court declines to amend this Agreement as provided herein, the invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of the remaining terms and provisions, which shall be enforced as if the offending term or provision had not been included in this Agreement.
- ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between the Parties and supersedes any prior or contemporaneous understandings, whether written or oral.
- HEADINGS: Headings to this Agreement are for convenience only and shall not be construed to limit or otherwise affect the terms of this Agreement.
- COUNTERPARTS: This Agreement may be executed in counterparts, all of which shall constitute a single agreement.
- FORCE MAJEURE: Service Provider is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God or of a public enemy, acts of civil authorities, acts of terrorism, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
- NOTICES ELECTRONIC COMMUNICATIONS PERMITTED: Any notice to be given under this Agreement shall be in writing and shall be sent by first-class mail, airmail, or email, to the address of the relevant Party set out at the head of this Agreement, or to the relevant email address set out below or other email address as that Party may from time to time notify to the other Party in accordance with this clause. In the case of notices to Customer, such notices will be sent to Service Provider’s addresses of record for Customer. Each party may change its notice address and email address by notifying the other in like manner.