These Terms and Conditions govern Customer’s acquisition and use of the Services, as described in the task order, proposal or other similar document referencing these terms (the proposal/task order and the Terms and Conditions are collectively referred to herein as the “Agreement”). By either clicking on a box indicating acceptance or executing a Task Order or Proposal that references this Agreement, Customer is agreeing to be bound by the terms described herein.
- Kairos Deliverables.
1.1 Kairos agrees to provide and/or deliver to Customer the services (“Services”) and hardware products and sensors (“Equipment”, and together with the Services, collectively, the “Deliverables”), set out in one or more task orders to be issued hereunder (each, a “Task Order”). Unless otherwise provided in the applicable Task Order, the Deliverables are purchased as subscriptions for the term stated in the applicable Task Order (or in the applicable online purchasing portal). Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Kairos regarding future functionality or features.
1.2 Prior to performing the physical installation of the Deliverables, Kairos shall advise Customer on the location and positioning of the Equipment. While Kairos will provide advice regarding the location of positioning of such Equipment and such advice will include advice regarding the positioning of the Equipment, Customer acknowledges that regardless of the foregoing advice, Customer will have the ultimate decision regarding the location and position of the Equipment (each Unit location so designated by Customer, a “Designated Location”). Accordingly, Kairos shall have no liability to Customer resulting from any poor performance or functionality resulting from or otherwise relating solely to the Designated Location.
1.3 Customer represents and warrants that it has all necessary rights, title, and authority and hereby authorizes Kairos to install the Equipment at the Designated Locations and to make any necessary inspections or tests in connection with such installation. Customer agrees to allow Kairos and its agents reasonable access to the designated installation locations at such reasonable times as may be agreed by Kairos and Customer upon reasonable notice for the purpose of performing the installation; however, in performing the installation, Kairos and its agents shall not unreasonably interfere with access to the Property. Following the initial installation of the Equipment and verification by Customer that the Equipment functions correctly and as intended, Kairos’s obligation to perform the initial installation work shall cease; however, Kairos will continue to monitor the performance of the Equipment. The Equipment shall be installed in a commercially reasonable and workmanlike manner in accordance with Kairos’s standard installation procedures, and the installation will be completed within a reasonable time from the time the Designated Locations are selected by Customer. Customer agrees and understands that the Services will not function without the Equipment. Client representative to accompany the Kairos installation team and facilitate access to gateway and sensor locations. Installation is to occur over consecutive working days with uninterrupted access to gateway and sensor locations from 9 AM to 5 PM local time. Restricted entry or access to the sensor location will be the client’s responsibility to install.
- Fees and Expenses.
2.1 Invoices; Disputes. In consideration for the Deliverables and the rights granted to Customer under this Agreement, Customer shall pay the fees and expenses set out in the applicable Task Order. Unless otherwise provided in the Task Order, the first invoice will be provided upon execution of this Agreement and such fee will be payable within 30 days following the invoice date. Kairos requires that Customer pay at least 50% down-payment on each installation. In the event Customer provides written notice of a dispute regarding an invoice, Customer agrees to nevertheless pay the undisputed portion of the invoice on a timely basis. Kairos’ fees may increase from time to time upon notice to Customer; however, Customer’s fees for a Kairos Deliverable will not increase during the Initial Term and will not increase more than once per year.
2.2 Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Kairos’s income, revenues, gross receipts, personnel or real or personal property or other assets.
2.3 Late Payments. Except for any disputed amounts that Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month (APR), calculated daily and compounded monthly. Customer shall also reimburse Kairos for all costs incurred in collecting any late payments, including, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Kairos does not waive by the exercise of any rights hereunder), Kairos shall be entitled to suspend the provision of any Deliverables if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for 30 days following written notice thereof.
2.4 Failure to Meet Installation Conditions. Customer acknowledges and agrees that Kairos cannot commence installation services unless all required installation conditions are met. Customer is solely responsible for ensuring the accuracy and completeness of all information provided to Kairos, including but not limited to valve specifications, pipe sizes, power supply locations, and any other relevant details. The customer is responsible for verifying that all necessary components and preparations are in place prior to the scheduled installation date. If Kairos is unable to commence or complete installation services due to any errors, omissions, or unfulfilled conditions on the part of the Customer at the scheduled installation time, Customer agrees to pay Kairos a "Re-Scheduling Fee." The Re-Scheduling Fee shall be equal to the Installation Fee stated in the Agreement and will be billed as a separate line item. Customer understands that failure to meet installation conditions may result in delays in project completion and potential additional costs. Customer agrees to promptly address any identified errors or omissions to facilitate the installation process. Kairos reserves the right to assess the feasibility of rescheduling the installation based on its availability and project constraints.
- Cooperation; Coordination.
3.1 Generally. Customer shall cause its employees, agents, contractors, and any other third parties engaged by Customer to cooperate and coordinate with Kairos in its provision of the Deliverables and provide reasonable access to the Premises, employees and equipment as required to enable Kairos to provide the Deliverables.
3.2 Inspection and Notification. The Equipment will be delivered by Kairos technicians or Kairos contractors. Customer shall inform Kairos’ installation team of any issues, defects or conditions that might affect the ability of Kairos’ team to install the Equipment or that might affect the installation area (e.g., current, pre-existing or potential leaks, mold, instability or aging HVAC equipment, etc.). If Customer believes that Equipment it receives from Kairos are defective, it shall give written notice to Kairos within thirty (30) days of its receipt of the Equipment and make the Equipment available to Kairos or, upon Kairos’ request, return the Equipment, at Kairos’ expense, for inspection. If Kairos confirms that any Equipment is defective, Kairos shall, at its option, either repair or replace the defective Equipment, at Kairos's expense or reimburse Customer for the cost of the defective Equipment. Kairos shall have the right to require Customer to return any defective Equipment, at Kairos's expense, or to have Customer destroy it. If Kairos directs Customer to destroy defective Equipment, Customer shall do so and provide Kairos with a certificate signed by a senior executive or other designated person with requisite authority in a form reasonably satisfactory to Kairos, certifying that the defective Equipment was destroyed. Customer's failure to give notice of any claim within thirty (30) days after its receipt of the Equipment shall constitute an unqualified waiver by Customer of its claims related to such Equipment. Where the Deliverables were installed on-site by Kairos representatives, Customer agrees that it will not, and it will not authorize or permit its personnel to, move, adjust or modify the Deliverables once installed without Kairos’ prior written consent. Where Customer installed the Deliverables, then Customer agrees that such installation must be in compliance with the written instructions and specifications (i.e. printed, video or other materials) provided or made available by Kairos. Kairos will endeavor to notify Customer of any preexisting condition that could affect the performance or condition of the Equipment or the Customer’s Premises; however, Kairos is not responsible for any damages caused by conditions that existed prior to installation of the Equipment and will not be able to notify Customer of any issue that is not visibly apparent, regardless of the circumstances of the installation.
- Intellectual Property.
4.1 Ownership. All rights, in and to all Intellectual Property, documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Kairos, whether in the course of performing the Services and providing the Equipment or otherwise, including any items identified as such in the Task Order (collectively, the “Work Equipment””) shall be owned solely by Kairos. “Intellectual Property” means any or all of the following and all right, title and interest therein: (a) any computer program, operating system, applications system, firmware object code, source code or software of any nature; (b) names, corporate names, domain names, fictitious names, trademarks, trademark applications, service marks, service mark applications, trade names, brand names, product names and slogans, and goodwill associated with any of the foregoing; (c) inventions (whether patentable or not), invention disclosures, improvements, trade secrets, confidential or proprietary information, know-how, product rights, technology, technical data, models, algorithms, tools, business process methodologies and all documentation relating to any of the foregoing; (d) patents, and patent applications, and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof; (e) copyrights, copyright registrations and applications therefor, and all other rights corresponding thereto; (f) websites, and all designs related thereto; (g) databases and data collections (including any normative data and any normative databases) and all rights therein; (h) moral and economic rights of authors and inventors, however denominated; (i) similar or equivalent rights to any of the foregoing and other intangible assets or any nature; (j) goodwill and claims of infringement and misappropriation against third parties; (k) internal systems including computer hardware systems and embedded systems; and (l) all registrations, renewals, extensions, combinations, divisions, or reissues of any of the foregoing.
4.2 Limited License; Software. During the Term, Kairos grants Customer a limited license to the Work Product free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent reasonably necessary to enable Customer to perform its obligations under this Agreement and make use of the Work Product. To the extent that the Deliverables include software products, Kairos grants to Customer a non-exclusive, non-sublicensable, and non-transferable limited license to such software for the sole purpose of accessing the data insights provided by Kairos’ Equipment (the “Purpose”). Customer may use the software only in accordance with the terms of this Agreement and may not (and may not attempt to) (i) modify, alter, amend, fix, translate, enhance or otherwise create derivative works of the Licensed Software or use the Licensed Software in a manner inconsistent with the Purpose, (ii) copy, disassemble, de-compile, reverse engineer, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part, except as and only to the extent this restriction is prohibited by law, (iii) circumvent, remove, disable, or otherwise create or implement any workaround to, any security features contained in the software, (iv) remove, delete or alter any trademarks, copyright notices or other intellectual property rights notices of Kairos or its licensors, if any, from the software (v) rent, lease, lend, encumber, sell, assign, distribute, publish, transfer or otherwise make the software available to any third-party for any reason or (vi) use the software for purposes of competitive analysis thereof, the development of a competing software product or service or any other purpose that is to Kairos's commercial disadvantage. If the Licensed Software includes or provides access, links, or references to third-party information (other than third-party information that Kairos includes in the Licensed Software) or information provided by Customer, then Customer’s use of, or reliance on, such third-party information or licensee-provided information shall be at Customer’s sole risk. Kairos reserves the right to modify, upon five (5) days prior written notice to Customer, the software and the features and functionality of the software, provided that no such modification shall materially decrease the features and functionality made available by the software as of the Effective Date.
4.3 Data. Any and all information obtained in connection with the Deliverables (collectively, the “Data”), together with any and all data that is derived by processing the Data, including any usage data, output, copies, reproductions, improvements, modifications, adaptations, translations, reports, analyses, interpretation, reorganizations, aggregations, combinations, iterations, models, derivatives, extensions, or compilations of the Data created by Kairos (the “Aggregated Data”) shall be owned solely by Kairos. Kairos grants Customer a license to the Data free of additional charge and on a non-exclusive, worldwide, transferable, sublicenseable, fully paid-up, royalty-free and perpetual basis. The Aggregated Data shall not include any personal information related to Customer, the residents of its communities, or other personally identifiable information.
4.4 Confidential Information. Each Party agrees that it shall not use or disclose to any third-party, except for the purpose of performing this Agreement, any business or technical information (including Intellectual Property) of the other Party which is designated, or in the exercise of reasonable judgment should be recognized by such receiving Party as, confidential (“Confidential Information”). The obligation of confidentiality shall not apply to information which: (a) is or becomes part of the public domain through no fault of the receiving Party; (b) is furnished by the disclosing Party to others without restrictions on use and disclosure; (c) becomes known or available to the receiving Party without restriction from a source other than the disclosing Party without breach of any agreement with the disclosing Party; (d) is disclosed with prior written approval of the disclosing Party; (e) is independently developed by the receiving Party without the use of any Confidential Information and without breach of this Agreement; or (f) is previously known to the receiving Party on a non-confidential basis. A receiving Party may disclose Confidential Information to the extent required by court order, statute or government agency or other legal process, in which case, the receiving Party shall give the disclosing Party as much notice as is reasonably practical and allowable so that the disclosing Party may seek a protective order or other confidential protection as the disclosing Party, in its sole discretion, may elect and the receiving Party shall reasonably cooperate with the disclosing Party in disclosing Party’s efforts to obtain such order or protection. The Parties agree that the terms, but not the existence of this Agreement or the Parties’ relationship, shall be considered Confidential Information. The obligations of this Section shall survive for five (5) years after termination of this Agreement.
- Term, Termination and Survival.
5.1 Term of the Agreement. Unless another term is selected by the Customer in the Task Order, the initial term of this Agreement shall be for five years from the Effective Date (the “Initial Term”) and shall automatically renew for successive one (1) year terms, (each a “Successive Term” and together with the Initial Term, the “Term”) unless either Party provides written notice at least 90 days prior to the end of such Initial Term or Successive Term or this Agreement is terminated sooner pursuant to Section 5.2.
5.2 Termination. Either Party may terminate this Agreement or any Services provided in a Task Order, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party (a) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice describing such breach in reasonable detail, (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing. Customer may terminate this Agreement at any time following the third anniversary of the Effective Date by providing Kairos with 90 days’ prior written notice; however, Customer will be required to pay Kairos a termination penalty equal to 75% of the then-remaining recurring fees payable during the Initial Term; however, no termination penalty will apply where Customer’s assets (including the subject Premises) are sold to a third-party.
5.3 Effect of Termination. Upon termination of this Agreement, unless otherwise agreed upon by the Parties (a) any and all amounts due to Kairos shall remain due and payable in accordance with the applicable payment terms, (b) all licenses granted to Customer by Kairos pursuant to this Agreement shall terminate immediately and without further notice, and (c) Customer and Kairos shall work together, in good faith, to determine the most expedient and cost-effective method for returning Kairos’s leased property. The above described effects of termination shall not be interpreted as limiting either Parties’ rights or remedies to which it is entitled under law or equity and shall not relieve Customer of Customer’s obligations regarding confidentiality of the Licensed Software.
5.4 Survival. All provisions of this Agreement that, by their nature, are clearly intended to survive the termination of this Agreement shall survive the termination or expiration of this Agreement or any Task Order.
- Representations and Warranties.
6.1 Kairos Warranties. Kairos represents and warrants to Customer the following as of the Effective Date and thereafter, with the intention that such representations and warranties survive the Effective Date: (a) Kairos is duly organized, validly existing, and in good standing under the laws of the state of Kairos’s formation and possesses the power to enter into this Agreement and to comply with the terms and conditions of this Agreement without violating any other agreement to which it is a party in any material respect, (b) the execution, delivery, and performance of this Agreement, and the transactions contemplated by this Agreement, by Kairos have been duly and validly authorized and approved by all requisite action on the part of Kairos, (c) this Agreement is a legal, valid, and binding obligation of Kairos, (d) no consent or approval which has not been, or is not expected to be, obtained from any person or public authority is required to authorize, or is required in connection with, the execution, delivery, or performance of this Agreement by Kairos (e) the Licensed Software, as such is delivered or made available to Customer and when used as contemplated in this Agreement, does not and will not misappropriate, infringe or otherwise violate any intellectual property rights of any third-party.
6.2 Customer Warranties. Customer represents and warrants to Kairos the following as of the Effective Date and thereafter, with the intention that such representations and warranties survive the Effective Date: (a) Customer is duly organized, validly existing, and in good standing under the laws of the state of Customer’s formation and possesses the power to enter into this Agreement and to comply with the terms and conditions of this Agreement without violating any other agreement to which it is a party in any material respect, (b) the execution, delivery, and performance of this Agreement, and the transactions contemplated by this Agreement, by Customer have been duly and validly authorized and approved by all requisite action on the part of Customer, (c) this Agreement is a legal, valid, and binding obligation of Customer, (d) no consent or approval which has not been, or is not expected to be, obtained from any person or public authority is required to authorize, or is required in connection with, the execution, delivery, or performance of this Agreement by Customer, and (e) Customer shall not permit any competitor of Kairos to view, use, access, or copy of Kairos’s intellectual property, including the Licensed Software.
- Indemnification; Limitation of Liability.
7.1 Subject to the below limitations of liability, Kairos shall reimburse, defend, indemnify, and hold harmless Customer and Customer’s affiliates and Customer’s and Customer affiliates’ partners, members, shareholders, owners, managers, directors, advisors, officers, employees, contractors, agents, subsidiaries, successors, and assigns for, from, and against any and all claims, damages, losses, deficiencies, liabilities, penalties, charges, costs, and expenses resulting from, relating to, or arising out of, (a) negligent or intentionally wrongful acts or omissions of Kairos (including Kairos’s personnel) in violation of the terms of the Agreement or, and (b) any claim that the Licensed Software, as delivered under this Agreement, infringes or misappropriates any intellectual property rights of any third-party (an “Infringement Claim”). THE FOREGOING STATES KAIROS’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR AN INFRINGEMENT CLAIM. CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES ON THE PART OF KAIROS ARISING THEREFROM. Kairos shall have no liability or obligation under this Section for any claim based on: (i) use of any part of the Deliverables or Licensed Software in combination with materials, deliverables, or equipment not provided by Kairos; or, (ii) modifications made by Customer or any third-party or any use other than as expressly authorized herein.
7.2 Customer shall reimburse, defend, indemnify, and hold harmless Kairos and Kairos’s affiliates and Kairos’ and Kairos affiliates’ partners, members, shareholders, owners, managers, directors, advisors, officers, employees, contractors, agents, subsidiaries, successors, and assigns for, from, and against any and all claims, damages, losses, deficiencies, liabilities, penalties, charges, costs, and expenses resulting from, relating to, or arising out of, (a) acts or omissions of Customer (including Customer’s personnel) in violation of the terms of this Agreement, (b) unauthorized, improper, or illegal use by Customer (including Customer’s personnel) of the Licensed Software in violation of the terms of this Agreement, (c) use by another of the Licensed Software, using Customer’s account, in violation of the terms of this Agreement, (d) Customer’s breach of any covenant, agreement, representation, or warranty set forth in this Agreement, or (e) the inaccuracy of the Customer-provided information.
7.3 Each party’s indemnification obligations shall be conditioned upon the following: (a) the indemnified party shall provide prompt written notice of any claim to the indemnifying party, provided that any failure to provide such prompt written notice will only relieve the indemnifying party of its obligations to the extent its ability to defend such claim is materially prejudiced by such failure; (b) the indemnifying party shall not consent to entry of any judgment or admission of any liability of the indemnified party without the prior written approval of the indemnified party; and (c) the indemnified party shall cooperate in the defense of any claim as reasonably required by the indemnifying party at the indemnifying party’s sole expense. It is acknowledged and agreed that nothing contained herein (i) shall be considered a waiver by either party, of any remedy or right, in law or equity, all of which are expressly reserved without prejudice; and (ii) prevents the indemnified party from obtaining separate counsel at such party’s sole expense.
7.4 IN NO EVENT SHALL KAIROS BE LIABLE TO CUSTOMER OR TO ANY THIRD-PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT KAIROS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.5 IN NO EVENT SHALL KAIROS’S AGGREGATE 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 TO KAIROS PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Insurance.
During the Term, Kairos shall, at its own expense, maintain and carry insurance in the amounts and coverage appropriate for the Deliverables and Services provided. Upon Customer’s request, Kairos shall provide Customer with a certificate of insurance from Kairos’s insurers evidencing the same. In the event that Customer requests or requires coverages greater than or in addition to the standard provided Kairos insurance, Customer may be subject to increased or additional fees.
- Publicity.
Neither Party shall issue any news release, public announcement, or other form of publicity concerning this Agreement or the Deliverables without obtaining the prior written approval of the other Party hereto, which approval will not be unreasonably withheld or delayed.
- License Grants.
During the Term, the Parties grant each other a limited, non-exclusive license to use such trademarks as each may designate from time to time, for the specific and limited purpose of publicly marketing and promoting the Deliverables.
- Miscellaneous.
11.1 Entire Agreement. This Agreement, including and together with any related Quote(s), Order Form(s), Task Order(s), exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Quote, Schedule or Task Order, the terms and conditions of this Agreement shall supersede and control. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
11.2 Notice. Any notice or other communication required or permitted to be given under this Agreement must be in writing and given by: (a) deposit in the United States mail, addressed to the Party to be notified, postage prepaid and registered or certified with return receipt requested; (b) delivery in person, by courier service, or by overnight delivery service; (c) facsimile; or (d) by electronic mail. Each notice or communication that is mailed, delivered, or transmitted in the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third business day following the date on which it is mailed, in the case of notices delivered by hand, courier service, overnight delivery service, or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of the courier service or overnight delivery service being proof of delivery), in the case of electronic mail, upon receipt, or at such time as delivery is refused by the addressee upon presentation. Any Party may change its address for notice by written notice given to the other Parties hereto. Kairos’ notice information is below, and Customer’s notice address will be deemed to be the Customer’s installation address.
Kairos Water, Inc.
Attention: Dean Fung-A-Wing
1700 Northside Drive, Suite A7, Unit #5543
Atlanta, Georgia 30318
Email: dean@kairoswater.io
With copy to: General Counsel
Email: legal@kairoswater.io.
11.3 Reformation; Severability. If any provision of this Agreement is adjudicated to be invalid, illegal or unenforceable, then the parties hereby stipulate and agree that the adjudicating authority may and hereby is requested to modify the effect and/or interpret such provision so that it becomes valid, legal, and enforceable to the greatest extent permitted by applicable Law; provided that, if for any reason the provision in question cannot be modified or interpreted in accordance with this Section, then: (a) this Agreement will be reformed, construed, and enforced as if such provision has been severed here from; (b) such invalidity, illegality or unenforceability will not take effect in any other jurisdiction absent a separate adjudication to that effect; and (c) the remainder of this Agreement shall continue in full force and effect.
11.4 Relationship of Parties. Nothing in this Agreement shall create or be deemed to create the relationship of partners, joint venturers, employer-employee, joint employees, or principal-agent between the Parties. Neither Party shall have any authority to assume or create any obligation or responsibility whatsoever, express or implied, on behalf of the other Party. Each Party shall use commercially reasonable efforts to cooperate and work in good faith with the other Party in connection with the transactions contemplated by this Agreement.
11.5 Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.6 Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the permitted successors and assigns of each Party hereto. Neither Party may assign this Agreement or any of its rights hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, and any attempted assignment without such consent shall be void; provided however, that Kairos may assign this Agreement to an affiliate, subsidiary or a successor (by merger or operation of law) or in connection with the sale of its assets, equity or any change in control.
11.7 No Third-party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.8 Choice of Law. This Agreement, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Georgia, without regard to the conflict of law’s provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia.
11.9 Waiver of Jury Trial. Each Party acknowledges that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
11.10 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary herein, a signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
11.11 Force Majeure. Kairos shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Kairos including acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 180 days, Customer shall be entitled to give notice in writing to Kairos to terminate this Agreement.
11.12 Fees, Costs, and Expenses. Except as otherwise set forth herein, all fees, costs, and expenses incurred in connection hereto shall be paid by the Party incurring such fees, costs, and expenses. In the event that any suit, action or proceeding is instituted under or in relation to this Agreement, including to enforce any provision in this Agreement, the substantially prevailing Party in such dispute shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such substantially prevailing Party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
11.13 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” shall 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. Unless the context otherwise requires, references herein to Sections, Schedules and Exhibits mean the Sections of, and Schedules and Exhibits attached to, this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits and Task Orders referred to herein shall be incorporated herein, construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
