KORE ECOMMERCE PRODUCTS AND SERVICES MASTER AGREEMENT
This Products and Services Master Agreement (“Agreement”) is entered into by and between the entity identified as Company below (“Company”, “You”, “Your” or “Yourself”) and KORE Wireless Inc. (“KORE”, “We”, “Our”) and is effective as of the date of Your acceptance (the “Effective Date”),
The following terms and conditions (“Terms”) provide for terms that are common to this agreement, including all Addenda and Statements of Work (defined below). Capitalized terms not otherwise defined in this Agreement have the meaning set out in the applicable Addendum.
General. We and/or our Affiliates shall provide to You and/or Your Affiliates the equipment, devices, hardware, and other goods (collectively, “Products”) and the connectivity or other professional services (collectively, “Services”), each to the extent they are set out and described in a statement of work, addendum or other purchasing document that are executed by the parties or their affiliates and reference this Agreement (each, an “Addendum” or “Statement of Work”). Each Addendum shall be governed by this Agreement and any schedules, exhibits, terms, or other attachments attached thereto or incorporated therein. You acknowledge that each Addendum may contain additional terms specific to the Products or Services being purchased, including any applicable warranties and disclaimers and required carrier provisions. In the event of a conflict between the terms of this Agreement and the terms of an Addendum, the terms of the applicable Addendum will govern to the extent of the conflict or inconsistency.
Services. If You or KORE wish to change the scope, pricing or performance of any Services, You or We shall submit details of the requested change to the other in writing. We shall, within a reasonable time after such request, provide a written estimate to You of: (a) the likely time required to implement the change; (b) any necessary variations to the Fees and other charges for the Services arising from the change; and (c) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate or updated fee schedule, the parties shall negotiate in good faith the terms of such change (if and when mutually agreed in writing, a “Proposal”). Neither party shall be bound by any Proposal unless mutually agreed upon in writing.
FEES AND PAYMENT TERMS
Fees. For the Products purchased or Services provided under this Agreement, You will pay KORE the fees, charges, and expenses in the amounts set out in the applicable Addendum (the “Fees”). Except as set out in an Addendum otherwise, Fees are non-cancelable and non-refundable and shall be charged to Your credit card customers when Your order is placed. All Fees paid and expenses reimbursed under this Agreement will be in the lawful currency of the jurisdiction of KORE or the applicable KORE Global Affiliate, as the case may be. You are responsible for all of Your account charges, including all usage-based charges, overages or roaming charges, irrespective of whether such arise as a result of fraud, non-payment by any of the Your Affiliates or other permitted users pursuant to this Agreement, or for any other reason except as expressly provided herein.
Data Policy. We and/or our agents and Affiliates do not collect personally identifiable information unless You provide it to KORE. We collect personal information to provide personalized wireless telecommunications and information services. We may use Your personal information for purposes that are related to providing those services that would reasonably be expected (including the purpose of keeping You informed about features of available services or conducting analysis in order to provide a better service).
OTHER THAN AS EXPRESSLY SET OUT IN AN ADDENDUM, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESSED, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY KORE. WITHOUT LIMITING THE FOREGOING, NO WARRANTY IS MADE THAT USE OR RECEIPT OF THE PRODUCTS, SERVICES OR DELIVERABLES WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE PRODUCTS, SERVICES OR DELIVERABLES WILL BE CORRECTED, OR THAT THE PRODUCTS, SERVICES OR DELIVERABLES WILL MEET YOUR REQUIREMENTS.
Term. This Agreement shall commence as of the Effective Date and shall expire one (1) year thereafter (the “Initial Term”), unless earlier terminated in accordance with the provisions of this Agreement. This Agreement shall automatically renew for additional terms of one (1) year each (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party notifies the other at least ninety (90) days prior to the beginning of any Renewal Term or unless earlier terminated in accordance with the provisions of this Agreement.
Contact. Your Primary Contact will be KORE’s designated representative for all notices or communications required under this Agreement. All e-mails related to this Agreement, including user credentials and support documentation, will be sent to the Primary Contact’s e-mail address.
By accepting the Terms and Conditions during account registration, You acknowledge and accept this Agreement and the associated terms and conditions including the KORE eCommerce Products and Services Master Agreement Terms and Conditions, which are incorporated into the Agreement by reference.
eCommerce Products and Services Master Agreement Terms and Conditions
- YOUR OBLIGATIONS
Generally. You shall have the obligations set out in this Section 1.
- Your Primary Contact. You shall cooperate with KORE in all matters relating to the performance of this Agreement and appoint an employee to serve as the primary contact with respect to this Agreement (the “Your Primary Contact”). You shall ensure that the Your Primary Contact has appropriate access to Your network, equipment or facilities and is available during regular business hours, and otherwise available by phone or email after hours, to provide the required information and assistance, including in connection with the delivery of any Services.
- Access and Assistance. You shall provide such access to Your premises, facilities, and computer systems and networks as may reasonably be requested by KORE for the purposes of performing hereunder. You shall in a timely manner provide such information, materials, access, and resources as set out in the applicable Addendum and respond promptly to any requests by KORE to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for KORE to perform under this Agreement.
- Delay in Performance. If KORE’s performance of its obligations under this Agreement is prevented or delayed by any action or failure to act of You or Your agents, subcontractors, consultants, or employees, KORE shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by You, in each case, to the extent arising directly or indirectly from such prevention or delay, and KORE’s obligation to perform will be extended by the same number of days as Your prevention or delay.
- Licenses and Consents. You shall maintain all necessary services, programs, licenses, permissions, and consents from third parties needed or appropriate for KORE to perform under this Agreement.
- Compliance with Law. You shall comply with all applicable statutes, laws, ordinances, regulations, rules, codes, orders, constitutions, treaties, common law, judgments, decrees, or any other requirement or rule of law of any federal, state, provincial, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction (collectively, “Law”).
- Generally. You shall have the obligations set out in this Section 1.
- FEES AND PAYMENT TERMS
- Disputed Amounts. In the event You dispute any Fees, You shall notify KORE, in writing, of any disputed amounts and the reason for the dispute prior to the due date for such Fees. Failure to do so shall be deemed to be Your acceptance of the invoiced amounts. If KORE agrees to waive any disputed amounts, KORE shall provide a credit to You for this amount and/or may apply such credit against amounts owing by KORE to You. For the purposes of disputed charges, the evidenced records of network usage as provided by the Underlying Carrier (“Call Detail Records”) shall be deemed to be accurate. KORE shall promptly review any amounts in dispute and notify You in writing within ten (10) days of the receipt of Your notice of the results of any KORE review. For any disputed amount agreed to by KORE, KORE shall provide a credit to You for this amount and/or may apply such credit against amounts otherwise owing by You.
- Taxes. The Fees due to KORE as set out in this Agreement are net amounts to be received by KORE, exclusive of all sales, use, withholding, excise, value added, ad valorem taxes, or duties incurred by You or imposed on KORE in the performance of this Agreement or otherwise due as a result of this Agreement. Unless otherwise expressly agreed in writing by the parties in an Addendum, You shall pay all customs, import, export or other duties, and all sales, value-added, excise, license, occupation and other taxes of any kind whatsoever, if any, including regulatory and other like charges that may be imposed by the applicable governing regulatory authority, which may become payable to any such authority by reason of KORE provision of the Services. This Section 2.2 will not apply to taxes based solely on KORE’s income, payroll or property.
- NON-DISCLOSURE AND CONFIDENTIALITY
- Disclosure. Each party may disclose to the other party certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. “Confidential Information” means any non-public or proprietary information that is of value to its owner and is treated as confidential, including trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to KORE’s pricing.
- Non-Disclosure and Non-Use. Neither party will disclose any Confidential Information of the other party without the other party’s express written authorization. Neither party shall use such Confidential Information for any purpose other than to carry out its duties and responsibilities under this Agreement or under any other agreement between the parties. Each party will keep such Confidential Information confidential and will use commercially reasonable efforts to ensure that its affiliates and representatives who have access to such Confidential Information comply with these non-disclosure and non-use obligations; provided, however, that either party may disclose Confidential Information (a) to those of its affiliates and representatives who need to know Confidential Information for the purposes of this Agreement or any other agreement between the parties, or (b) as may be required by a valid subpoena or court order; provided, however, that the disclosing party gave the other party at least ten (10) days advance notice of such required disclosure.
- KORE will provide You with access to Your personal information in accordance with the applicable privacy legislation.
- KORE may receive or disclose personal information or documents about You to or from: (i) law enforcement agencies to assist them in the prevention or investigation of criminal activity; or (ii) KORE underlying carriers, dealers and agents for purposes that are relating to providing You with an acceptable telecommunications service.
- Unless You consent, KORE will not disclose Your personal information to third parties, other than those which: (i) have contracted with KORE to keep the information confidential; or (ii) are subject to legal obligations to protect their personal information.
- You acknowledge that any calls made to KORE customer support centers may be recorded for quality assessment or training purposes.
- INDEMNIFICATION; LIMITATION OF LIABILITY
- Indemnification. KORE will at its expense (a) defend You and Your officers, directors, employees, successors and permitted assigns against any claim, suit, action or proceeding brought by a third party alleging that Your receipt or use of the Products or Services in accordance with this Agreement infringes any intellectual property right or misappropriates any trade secret of that third party (each, a “Claim Against You”), and (b) indemnify against and pay all settlements entered into and damages awarded against You as a result of a Claim Against You; provided, however, that KORE will have no obligations under this Section with respect to claims to the extent arising out of: (a) any instruction, information, designs, specifications or other materials provided by You to KORE; (b) use of the Products or Services in combination with any materials or equipment not supplied to You or that would not reasonably be expected in order to receive and use the Products or Services; (c) any modifications or changes made to the Products or Services by or on behalf of any person or entity other than KORE; (d) the use of any version of the Products or Services other than the most current release made available by KORE; or (e) Your breach of this Agreement or the applicable Addendum or Statement of Work. If a Product or Service, or any part thereof, becomes, or in the opinion of KORE may become, the subject of a claim of infringement or misappropriation, KORE may, at its option: (a) obtain a license for Your continued use of that Product or Service in accordance with this Agreement; (b) replace or modify the Product or Service so that they are no longer claimed to infringe or misappropriate; or (c) terminate this Agreement and refund to You a pro-rated portion of the fees prepaid by You for the remaining unused portion of the term for the infringing Service or for the Product based on a three year useful life. THIS SECTION SETS OUT YOUR EXCLUSIVE REMEDY AND KORE’S SOLE OBLIGATION FOR ANY IP INFRINGEMENT OR MISAPPROPRIATION CLAIM.
- Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 5.1, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 5.1, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO KORE UNDER THE APPLICABLE ADDENDUM IN THE TWO (2) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR LIABILITY.
- Exceptions. The exclusions and limitations in Section 5.2 and Section 5.3 shall not apply to a party’s breach of Section 3 (Non-Disclosure and Confidentiality) or obligations under Section 5.1 (Indemnification).
- By either party. Without prejudice to any other remedies and in addition to any other termination rights herein, either party may terminate this Agreement or an Addendum if (i) the other party commits a material breach of this Agreement or the applicable Addendum and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other party including the failure to pay any Fees due to KORE; or (ii) the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy Laws, Laws of debtor’s moratorium, or similar Laws.
- By KORE. Without prejudice to any other remedies and in addition to any other termination rights herein, KORE may terminate this Agreement or an Addendum if (i) You fail to pay any Fees by the applicable due date, upon five (5) business days written notice; or (ii) on sixty (60) days written notice.
- Suspension. In lieu of terminating this Agreement or any Addendum pursuant to Section 6.1a, KORE may, without waiver of or prejudice to any of its rights hereunder or under applicable Law, elect to suspend or restrict its performance until such time KORE has determined in its sole discretion that You are in compliance with this Agreement or any applicable Addendum.
- Effect. Termination of an Addendum shall not effectuate a termination of this Agreement or otherwise affect any other outstanding Addenda. Upon expiration or termination of this Agreement for any reason, (i) all outstanding Addenda shall terminate unless by their express terms they shall survive, and (ii) You will remit all undisputed amounts due and owing as of the date of termination, within thirty (30) days of the date of termination. Within thirty (30) days after termination or expiration of this Agreement, each party shall return or destroy the Confidential Information of the other party.
- Survival. The rights and obligations of the parties set out in this Section 6 and Sections 2, 5 and 8, and any right or obligation of the parties in this Agreement or any Addendum, which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
- Global Affiliates
- Purchases In Other Jurisdictions. The Parties agree to enable their respective direct and indirect Affiliates located outside of KORE’s and Your jurisdiction (each, a “Global Affiliate”) to transact business under this Agreement. If a Global Affiliate of You wishes to engage KORE or a Global Affiliate of KORE to provide Services or purchase Product, then Your Global Affiliate and KORE or the applicable KORE Global Affiliate may enter into an Addendum as necessary provided such Addendum references and is governed by this Agreement.
- Agreement Structure. KORE shall not be liable for the acts or omissions of its Global Affiliates in connection with such Affiliates’ provision of Services or Product under any Addenda with You or a Global Affiliate of You. Except for the immediately preceding sentence, upon execution of an Addendum by a Global Affiliate of You or a Global Affiliate of KORE, each use of “You” or “KORE,” as the case may be, shall be deemed to include such Party’s Global Affiliate.
- Additional Terms. To the extent the entities executing an Addendum require additional or alternative terms and conditions to those contained in the Agreement in order to comply with applicable law or business practices, the parties shall mutually agree to such alternative or additional terms and set them out in the applicable Addendum or Statement of Work.
- Governing Law; Venue. The interpretation, validity and enforcement of this Agreement shall be governed by the laws of the state of Georgia (except that any conflicts-of-law principles of such state that would result in the application of the law of another jurisdiction shall be disregarded). KORE and You specifically exclude the application of the United Nations Convention on the International Sale of Goods, the Uniform Commercial Code, and any legislation implementing the foregoing Convention and Code. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in a United States District Court for the Northern District of Georgia or, if such court would not have jurisdiction over the matter, then only in a Georgia state court sitting in Fulton County, Georgia. Each Party submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum.
- Conflicting Terms. Notwithstanding the content of any purchase order or any other document or record other than an Addendum, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern, and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
- KORE shall send notices using Your contact information provided on creation of your account on the KORE website. You shall use the following information:
3700 Mansell Rd., Suite 300
Alpharetta, GA 30022
- All notices or communications required or otherwise provided under this Agreement must be in writing (including email) and are deemed given when delivered to the addresses specified abov (i) by hand to a responsible officer of the addressee, (ii) by certified or registered mail (return receipt required), (iii) a nationally recognized overnight courier service, or (iv) by facsimile or email transmission (with evidence of transmission). Either party may update its notice information by written notice to the other party in accordance with this Section. Notice is effective upon delivery to the notice address, including upon receipt at the correct email address.
- Assignment. You shall not assign Your rights and obligations under this Agreement without the prior written consent of KORE; provided, however, You may upon written notice to KORE assign this Agreement in full to another entity if KORE confirms such assignee’s credit worthiness and history is equivalent to or better than Your credit worthiness and history. Any assignment made in violation of this Section is void.
- The original of this Agreement has been written in English and You waive any right You may have under the laws of its jurisdiction to have this Agreement written in any other language. You represent that You have the ability to read and write in English and have read and understood this Agreement. If this Agreement is translated into a language other than English, the English version and interpretation shall govern and prevail.
- For purposes of this Agreement, (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Should any provision of this Agreement require judicial interpretation, the parties agree that it is their intent that the court interpreting or construing this Agreement not apply a presumption that the terms of this Agreement will be more strictly construed against one party than against another.
- Waiver. A failure by either party to enforce any right under this Agreement shall not at any time constitute a waiver of such right or any other right, and shall not modify the rights or obligations of either party under this Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such a provision shall be deemed severed from the Agreement and the other provisions shall remain in full force and effect.
- Entire Agreement; Amendment. This Agreement and the Addenda, including any applicable Statement of Work, set out the entire agreement between the parties concerning the matters described above and supersede all prior written or oral agreements, or understandings. Except as provided for herein, this Agreement may be amended only by written consent of both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Addenda hereto, the terms of such addenda shall take precedence over the terms set out in this Agreement.
- Force Majeure. Other than in connection with Your payment obligations hereunder, neither party will be liable for delays in its performance hereunder due to causes beyond its reasonable control, including acts of God, public enemy, government, regulatory authorities, or courts of law or equity, or caused by civil war, insurrection or riots, fires, floods, explosions, earthquakes or other casualties, strikes or other labor troubles, or failure of third party service providers or telecommunications networks or devices, provided that the party so relieved of its obligations hereunder provides notice to the other party and takes all reasonable and necessary steps to resume performance of its obligations as soon as possible.
- Non-exclusivity. Unless otherwise provided in an Addendum, nothing in this Agreement shall limit either party from pursuing alternative supplier, supply or other commercial relationships.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
- Equitable Relief. Each party acknowledges that a breach by a party of Section 1.3 (Compliance with Law) or Section 3 (Non-Disclosure and Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at Law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at Law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
- Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
Announcements. KORE may, in its own marketing and sales materials, including the KORE website, www.korewireless.com, refer by names and logos to You, unless You specifically advises KORE otherwise. Each party may publicly disclose the existence of this Agreement (but not any specific material terms hereof).
All hardware purchases made on this site are governed by the KORE Connect Power Solution agreement.
KORE Confidential and ProprietaryKEMA v1.0 - 0720