This Agreement is between you, the company for which you are performing work (collectively, "Client") and KE2 Therm Solutions, Inc. ("KE2 Therm") and shall govern your use of the Smart Access Service (the "Service"). This Agreement includes the terms and conditions set forth below, any changes by KE2 Therm to such terms and conditions, any provisions incorporated by reference, and any operating terms, policies or additional agreements implemented from time to time by KE2 Therm (collectively, this "Agreement"). KE2 Therm reserves the right, in its sole discretion, to change any of the terms and conditions of this Agreement or the SERVICE at any time, and from time to time, without notice to Client.
If Client receives any passwords from KE2 Therm, Client shall be responsible for any and all activities that occur under Client's account and password. Client agrees to keep any passwords strictly confidential, to allow no other person or entity to use any of its passwords, and to notify KE2 Therm immediately if Client has reason to believe that any of its passwords have been improperly used.
Client agrees to treat as strictly confidential the confidential information of KE2 Therm, including, without limitation, all KE2 Therm technical information, reference material, KE2 Therm APIs, all information posted or accessible on any password-protected sections of the Service, and other items designated by KE2 Therm as confidential, or should reasonable be understood under the circumstances of disclosure to be confidential.
THE SERVICE, INCLUDING WITHOUT LIMITATION, ALL MATERIAL PROVIDED OR MADE ACCESSIBLE THROUGH THE SERVICE ("SERVICE MATERIAL"), IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT (AND KE2 THERM DISCLAIMS ALL) WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES CONCERNING THE NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CLIENT HEREBY ACCEPTS THE ENTIRE RISK, AND THE CONSEQUENCES, OF USE OF THE SERVICE AND AGREES THAT KE2 THERM SHALL NOT BE LIABLE IN ANY RESPECT FOR ANY CLAIMS, LOSSES OR INJURIES ALLEGED TO HAVE RESULTED FROM USE OF OR IN RELIANCE ON THE SERVICE OR ANY ACCESS TO CLIENT'S SYSTEMS REQUIRED FOR USE OF THE SERVICE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT: (A) KE2 THERM'S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE SERVICE OR ANY SERVICE MATERIAL, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT OR OTHERWISE), WILL NOT EXCEED FIVE HUNDRED DOLLARS , AND (B) NEITHER KE2 THERM NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS OR LOST PROFITS), EVEN IF KE2 THERM OR ANY OF ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING STATES THE ENTIRE LIABILITY OF KE2 THERM WITH REGARD TO THIS AGREEMENT, THE SERVICE AND ANY SERVICE MATERIAL. THE LIMITATION OF LIABILITIES CONTAINED IN THIS SECTION IS A FUNDAMENTAL PART OF THE BASIS OF KE2 THERM'S BARGAIN HEREUNDER, AND KE2 THERM WOULD NOT OFFER THE SERVICE ABSENT SUCH LIMITATION. CLIENT SHALL INDEMNIFY, DEFEND AND HOLD KE2 THERM HARMLESS FROM ANY COST, LIABILITY, CLAIM, DAMAGE OR EXPENSE RESULTING FROM CLIENT'S USE OF THE SERVICE.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of Missouri, excluding its conflict of law rules. Client and KE2 Therm agree to submit to the personal and exclusive jurisdiction of the federal and state courts of the county of St. Louis, Missouri. KE2 Therm's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter. This Agreement may not be modified without the express prior written consent of KE2 Therm. Client represents and warrants that it has full power and authority to enter into this Agreement that the individual entering into this agreement has the authority to bind the company for which such individual is employed or engaged.
Licensee shall comply with all laws, regulations, permits, orders and other restrictions to the extent that they are applicable to the procurement and use of the Software Application, including any embedded third party software, and shall not, directly or indirectly, export or re-export (as defined in the United States Export Administration Regulations) any such software or any information about such software to any country for which the United States government or any agency thereof requires an export license or other governmental approval without first obtaining the same.