Knapsack has developed an online service that enables users to create, design, and develop design system assets, and download the corresponding assets and code for use with their own tools, platforms, and infrastructure. Subscriber wishes to subscribe, and Knapsack Service (as defined below) and Knapsack desires to provide access to the Knapsack System (as defined below) and provide the Knapsack Service to Subscriber, subject to the terms and conditions herein.
In consideration of the mutual promises contained herein, the parties hereby agree to the following:
1.1. “Access Protocols”
The passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any Authorized Users to access the Knapsack Service.
1.2. “Authorized User”
Any individual who is an employee of Subscriber as may be authorized by Subscriber access the Knapsack Service pursuant to Subscriber’s rights under this Agreement.
The technical materials provided by Knapsack to Subscriber in hard copy or electronic form that describe the features, functionality or operation of the Knapsack System.
1.4. “Intellectual Property Rights”
Any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.5. “Knapsack Service”
Knapsack’s online service that enables users to create, design, and develop Design System Assets and corresponding Design System Documentation.
1.6. “Knapsack System”
The technology, including hardware and software, used by Knapsack to deliver the Knapsack Service to Subscriber.
1.7. “Order Form”
A document, either physical or electronic, signed by both parties identifying a Service to be made available by Knapsack pursuant to this Agreement.
1.8. “Pricing Page”
Knapsack’s pricing page related to the Knapsack Service available at help.knapsack.cloud/article/79-subscription-plans, as may be amended by Knapsack from time to time.
1.9. “Support Page”
Knapsack’s support website available at help.knapsack.cloud/article/78-support-plans, as may be amended from time to time; provided, that, Knapsack will not materially degrade the support and uptimes set forth on such page during any active subscription.
1.10. “Design System Assets”
Those design and development assets, including, without limitation, tokens, components, and other content, uploaded by Subscriber to the Knapsack Service.
1.11. “Design System Documentation”
Any documentation, including source code, which describes or implements any Design System Assets, created by Subscriber through the use of the Knapsack Service.
2. KNAPSACK SERVICE
2.1. Subscription to the Knapsack Service
Subject to the terms and conditions of this Agreement, including payment of applicable fees, Knapsack hereby grants to Subscriber, during the term of the applicable subscription as identified on the Pricing Page, or Order Form, as applicable, a non-sublicensable, non-transferable, non-exclusive subscription to access and use, and to grant Authorized Users the right to access and use, the Knapsack Service, including any features or functions for which applicable fees have been paid, for Subscriber’s internal business purposes.
Subject to Subscriber’s payment of the fees set forth on the Pricing Page or applicable Order Form, Knapsack will provide Subscriber with access to the Knapsack Service during the term of this Agreement. On or as soon as reasonably practicable after the Effective Date, Knapsack shall provide to Subscriber the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the Knapsack Service in accordance with the Access Protocols. Subscriber shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Knapsack Service, and notify Knapsack promptly of any such unauthorized use known to Subscriber.
2.3. Authorized Users
Subscriber may permit any Authorized Users to access and use the features and functions of the Knapsack Service as contemplated by this Agreement. Each Authorized User will be assigned a unique user identification name (“User ID”) and password and/or other authentication mechanism for access to and use of the Knapsack Service. User IDs cannot be shared or used by more than one Authorized User at a time.
Subscriber will not, and will not permit any Authorized User or other party to: (a) knowingly interfere with or disrupt the integrity or performance of the Knapsack Service or the data contained therein; (b) reverse engineer, disassemble or decompile any component of the Knapsack System; (c) sublicense any of Subscriber’s rights under this Agreement, or otherwise use the Knapsack Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Knapsack System; or (e) otherwise use the Knapsack Service in any manner that exceeds the scope of use permitted under the subsection titled Subscription to the Knapsack Service. Subscriber acknowledges and agrees that the Knapsack Service will not be used, and are not licensed for use, in connection with any of Subscriber’s time-critical or mission-critical functions.
Subject to the terms of this Agreement, Knapsack shall use commercially reasonable efforts to (a) maintain the security of the Knapsack Service; and (b) use commercially reasonable efforts to provide the support and uptimes set forth on the Support Page.
3. OWNERSHIP AND LICENSES
3.1. Knapsack Ownership
Knapsack acknowledges that Subscriber retains all right, title and interest in and to the Website Assets and Website Documentation. Subscriber hereby grants to Knapsack a non-exclusive, royalty-free, worldwide right and license to use the Website Assets and Website Documentation for the purpose of providing the Knapsack Services to Subscriber.
4. FEES AND EXPENSES; PAYMENTS
In consideration for the access rights granted to Subscriber and the services performed by Knapsack under this Agreement, Subscriber will pay to Knapsack the fees as required by the Pricing Page or applicable Order Form. Except as otherwise provided in an Order Form, all fees are billed in advance and are due and payable to Knapsack within thirty (30) days of receipt of invoice. Knapsack shall be entitled to (in addition to any other rights or remedies Knapsack may have) discontinue the Knapsack Service and suspend all Authorized Users’ and Subscriber’s access to the Knapsack Service if any fees are overdue until such amounts are paid in full.
The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on Knapsack’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of access to the Knapsack Service to Subscriber. Subscriber will make all payments of fees to Knapsack free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Knapsack will be Subscriber’s sole responsibility, and Subscriber will provide Knapsack with official receipts issued by the appropriate taxing authority, or such other evidence as the Knapsack may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend Knapsack in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.
5. WARRANTIES AND DISCLAIMERS
5.1. Limited Warranty
Knapsack warrants to Subscriber that the Knapsack Services, when used as permitted by Knapsack and in accordance with the Documentation, will substantially conform to the Documentation during the term of the Agreement. Provided that Subscriber notifies Knapsack in writing of any breach of the foregoing warranty during the term hereof, Knapsack shall, as Subscriber’s sole and exclusive remedy, use commercially reasonable efforts to repair/fix the Knapsack Services, at Knapsack’s sole cost and expense. This warranty gives Subscriber specific legal rights, and Subscriber may also have other rights which vary from jurisdiction to jurisdiction.
THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE KNAPSACK SERVICE, KNAPSACK SYSTEM AND DOCUMENTATION ARE PROVIDED “AS IS,” AND KNAPSACK MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE KNAPSACK SERVICE, KNAPSACK SYSTEM OR DOCUMENTATION (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY KNAPSACK. KNAPSACK DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE KNAPSACK SERVICE AND KNAPSACK SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
6. LIMITATION OF LIABILITY
6.1. Types of Damages
TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER KNAPSACK NOR ITS SUPPLIERS SHALL BE LIABLE TO SUBSCRIBER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH KNAPSACK’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE KNAPSACK SERVICE, KNAPSACK SYSTEM OR DOCUMENTATION OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF KNAPSACK HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
6.2. Amount of Damages
THE MAXIMUM LIABILITY OF KNAPSACK ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO KNAPSACK DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL KNAPSACK’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE KNAPSACK’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF KNAPSACK OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
6.3. Basis of the Bargain
The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
7.1. Confidential Information
During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure
7.2. Protection of Confidential Information
The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Knapsack). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court of similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
8.1. By Knapsack
Knapsack will defend at its expense any suit brought against Subscriber, and will pay any settlement Knapsack makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Knapsack Service or Knapsack System infringes, misappropriates or violates any U.S. Intellectual Property Rights. If any portion of the Knapsack Service or Knapsack System becomes, or in Knapsack’s opinion is likely to become, the subject of a claim of infringement, Knapsack may, at Knapsack’s option: (a) procure for Subscriber the right to continue using the Knapsack Service or Knapsack System; (b) replace the Knapsack Service or Knapsack System with non-infringing software or services which do not materially impair the functionality of the Knapsack Service or Knapsack System; (c) modify the Knapsack Service or Knapsack System so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Subscriber to Knapsack for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of the Knapsack Service, Knapsack System, and Documentation. Notwithstanding the foregoing, Knapsack shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Knapsack Service or Knapsack System not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Knapsack Service or Knapsack System in combination with other products, equipment, software or data not supplied by Knapsack; or (y) any modification of the Knapsack Service or Knapsack System by any person other than Knapsack or its authorized agents. This subsection states the sole and exclusive remedy of Subscriber and the entire liability of Knapsack, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
9. TERM AND TERMINATION
This Agreement commences on the Effective Date and remains in effect until all Order Forms and subscriptions have expired or been terminated. Unless otherwise set forth in the Order Form: (a) each Order Form and each subscription will have a term of one (1) year; and (b) each Order Form and each subscription shall be automatically renewed for consecutive one (1) year terms unless either party provides written notice to the other of its intention not to renew at least thirty (30) days prior to the expiration of the then-current term.
Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
9.3. Effect of Termination
Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the section titled Confidentiality; and (c) within ten (10) days after the effective date of termination, Knapsack shall discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession. The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.
Subscriber agrees that Knapsack may use Subscriber’s name and logo on Knapsack’s logo and other marketing materials to identify Subscriber as a customer of Knapsack.
10.2. Modification of Terms
Knapsack may modify this Agreement from time to time. When Knapsack makes any changes to this Agreement, Knapsack will post a new copy of this Agreement at www.knapsack.cloud/legal/terms-of-service, and/or provide Subscriber with written notice of any changes by email. Subscriber is solely responsible for maintaining an up-to-date email address with Knapsack.
10.3. Governing Law and Venue
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Oregon, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Knapsack’s principal place of business is located for any lawsuit filed there against Subscriber by Knapsack arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Subscriber shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Knapsack Service, Knapsack System or Documentation.
Subscriber agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Knapsack, or any products utilizing such data, in violation of the United States export laws or regulations.
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the Knapsack Service, Knapsack System or Documentation contain valuable trade secrets and proprietary information of Knapsack, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Subscriber of its obligations with respect to Intellectual Property Rights of Knapsack will constitute immediate, irreparable harm to Knapsack for which monetary damages would be an inadequate remedy. In such case, Knapsack will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any software, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
10.8. No Assignment
Neither party shall assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
10.9. Force Majeure
Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
10.10. Independent Contractors
Subscriber’s relationship to Knapsack is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of Knapsack.
Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
10.13. Entire Agreement
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Subscriber and the Knapsack.