KISI INCORPORATED END USER AGREEMENT

Last Updated November 9, 2024

This End User Agreement (“Agreement”) governs the purchase and use of Kisi’s enterprise Software-as-a-Service platform for physical security, and is entered into between Kisi Incorporated (“Kisi”) and you, the end customer and user of the Products (“Customer”), either in connection with a purchase of the Products or use of the Products for evaluation purposes as part of a free trial. Customer is under no obligation to purchase the evaluation Products used in a free trial and will only be invoiced or charged for Products not purchased or returned following the expiration of the trial period. The terms “you,” “your,” and “yours” refer to you, the user of the Site. The terms “Kisi,” “we,” “us,” and “our” refer to Kisi.

By accepting this Agreement, whether by clicking a box indicating its acceptance, navigating through a login page where a link to this Agreement is provided, executing a Purchase Order that references this Agreement, or providing another form of electronic acceptance, Customer agrees to be bound by the terms of this Agreement. If Customer and Kisi have executed a separate written agreement governing Customer’s access to and use of the Products, then the terms of such signed agreement will govern and will supersede this Agreement.

This Agreement is effective as of the earlier of the date that Customer accepts the terms of this Agreement as indicated above or first accesses or uses any of the Products (the “Effective Date”).

Kisi may modify this Agreement from time to time, including by updating terms, pricing, or features. Kisi will provide notice of any material changes at least thirty (30) days before the effective date of the modification ("Notice Period") by sending an email to the Customer's email address on file and by posting a prominent notice on the Kisi website. The changes will become effective upon the earlier of: (i) the end of the Notice Period, or (ii) Customer's continued use of the Products after the Notice Period. "Continued use" in the preceding sentence means accessing or using any feature of the Products after the Notice Period. If Customer continues to use the Products after the Notice Period, Customer will be deemed to have accepted the modified Agreement.

Reference is hereby made to the Kisi Master Services Agreement (“MSA”) located at http://getkisi.com/legal/msa; the terms of this Agreement are incorporated into the MSA. If a conflict exists between this Agreement and the MSA, the terms of the EUA shall govern for the specific conflicted provisions only.

Kisi and Customer hereby agree as follows.

1. DEFINITIONS

The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement.

“Customer Data” means all data provided by Customer to Kisi by means of the Products. Customer Data does not include Usage Statistics (defined below.)

“Documentation” means the online documentation regarding the Hardware, available at https://docs.kisi.io/.

“DPA” means the Data Protection Agreement available at https://www.getkisi.com/legal/dpa or other negotiated data protection agreement, entered into between Kisi and Customer.

“Firmware” means the software developed and maintained by Kisi that is stored on the Hardware and enables the basic functioning of the Hardware and its communication with the Hosted Software.

“Hardware” means the Kisi hardware products, including but not limited to, Kisi Reader Pro, Kisi Controller, Mobile and Keycards, and other units manufactured by Kisi.

“Hosted Software” means Kisi’s Software-as-a-Service solution, currently known as “Kisi Dashboard,” and related infrastructure made available to Customer to manage and configure the Hardware.

“License” has the meaning ascribed to it in Section 2.1.

“License Term” means the length of time indicated in the License SKU set forth on the applicable Purchase Order.

“Products” means, collectively, the Software, Hardware, Usage Statistics, Documentation, and all modifications, updates, and upgrades thereto and derivative works thereof.

“Purchase Order” means each order document submitted to Kisi by a Reseller on behalf of Customer, and accepted by Kisi, indicating Reseller’s firm commitment to purchase the Products for the prices listed thereon.

“Reseller” means a third-party authorized by Kisi to resell the Products, to whom Customer has delivered a Purchase Order for such Products.

“Software” means the Firmware and Hosted Software.

“Software License Plan” means the type of license plan selected with according features: https://www.getkisi.com/pricing.

“Subscription”: means the recurring license fees paid for using the Software.

“Support” means the technical support services and resources available at https://help.kisi.io/hc/en-us.

“Usage Statistics” means routine information regarding from Customer’s use of the Products, including information automatically collected through the Software, such as a User’s IP address, browser type, and how the User interacts with the Software, as well as Hardware-related performance statistics and related data. For clarity, Usage Statistics does not constitute Customer Data.

“Users” means employees of Customer, or other third parties, each of whom are authorized by Customer to use the Products on Customer’s behalf.

2. LICENSE AND RESTRICTIONS

2.1. License to Customer. Subject to the terms of this Agreement, Kisi grants Customer a limited royalty-free, nonexclusive, transferable (such transfers strictly limited to to Section 12.5) worldwide right during each License Term to use: (i) the Software; and (ii) the Firmware, solely as within the Kisi Products and subject to the terms of this Agreement (“License”). Customer must purchase Licenses to use the Software for at least the number and type of Hardware units it manages with the Software, however Customer may authorize an unlimited number of Users to access and use the Software. If Customer purchases additional Licenses, either in connection with the purchase of additional Hardware units or renewal of Licenses for existing Hardware units, the overall License Term will be modified such that the License Term for all Licenses purchased will terminate on the same date.

2.2. License to Kisi. During the License Term, Customer will transfer Customer Data to Kisi while using the Products. Customer grants Kisi a non-exclusive right and license to use, reproduce, modify, store, and process Customer Data solely to develop and maintain the Products and provide them to Customer. Customer represents and warrants that it possesses the necessary rights and authority to grant Kisi the rights set forth in this Section 2.2 with respect to Customer Data.

2.3. Restrictions. Customer will not (or allow a third party to): (i) use the Products in order to monitor their availability, security, performance, or functionality, or for any other benchmarking or competitive purposes (other than for routine product comparison purposes) without Kisi’s express written consent; (ii) market, sublicense, resell, lease, loan, transfer, or otherwise commercially exploit the Products; (iii) modify, create derivative works, decompile, reverse engineer, attempt to gain access to the source code, or copy the Products or any of their components; (iv) use the Products as part of any life-saving or emergency systems or any such related environment; or (v) use the Products to conduct any fraudulent, malicious, or illegal activities or otherwise in contravention of any applicable laws or regulations (each of (i) through (v), a “Prohibited Use”).

3. COSTS AND FEES; SUBSCRIPTION, CANCELLATION

3.1. Costs and Fees.

3.1.1. Hardware Product Costs. You will be charged for Kisi Hardware at the time of purchase unless otherwise agreed upon in writing by you and Kisi or Reseller. Once charged, your Hardware will be subject to the Hardware Warranty and Return policy included in Section 4 of these Terms. These Hardware charges are exclusive of any fees you incur in the installation of Kisi Products and Software License charges and fees.

3.1.2. Installation Costs. Kisi relies on Resellers (or other third parties) for installation services. Any services around installation are provided by Resellers (and other third parties) and any costs related thereto will be settled between Customer and Reseller(s) (and other third parties, as applicable).

3.1.3. Software License Fee. You will be charged for your Kisi Subscription immediately upon the purchase of the Kisi Products. The Subscription charges will correspond with the number of access points at your location.

3.1.4. Software License Upgrade. You may upgrade your Kisi Subscription to the next level of Software License Plan once you exceed your license quota based on your initial Software License Plan. Kisi reserves the right to upgrade your Software License Plan automatically and without prior notice once you exceed your plan quota.

3.1.5. Responsibility for Taxes. The fees stated for the Products and services do not include any taxes, duties, or similar charges (collectively, “Taxes”) that may be applicable to the sale, license, or use of the Hardware or Software. You are solely responsible for the payment of all such Taxes, excluding any taxes based solely on our income. These Taxes include, but are not limited to, sales, value-added tax (VAT), goods and services tax (GST), and any other applicable taxes.

3.1.6. Withholding Taxes. If any Taxes are required to be withheld from any payment to us by law, you shall be entitled to withhold and remit such Taxes to the appropriate government authority. You agree to provide us with official receipts issued by the appropriate government authority or other such evidence as we may reasonably request to establish that such Taxes have been paid.

3.1.7. Import and Export Duties. You are responsible for all duties, tariffs, and similar charges imposed on the import and export of the hardware or related software, including any customs clearance costs.

3.1.8. Regulatory Fees. Certain jurisdictions may require payment of additional fees related to your usage of the Hardware, including but not limited to recycling fees, environmental handling fees, or other regulatory assessments. You are responsible for any such fees where applicable.

3.1.9. Changes in Taxes or Fees. If any new Taxes or regulatory fees are imposed, or if the applicable rate of any Taxes or fees changes, we reserve the right to adjust the prices to reflect these changes.

3.1.10. Disputes Related to Taxes. If any dispute arises concerning the application or calculation of Taxes, you agree to work with us to resolve the dispute in accordance with applicable law. However, your payment obligations under this section shall not be contingent upon the resolution of such disputes.

3.2. Subscription.

3.2.1. Trial Period. Kisi offers a 30-Day return window for the Kisi Hardware (the “30-Day Trial”). If for any reason Kisi does not fit your needs, please contact support@getkisi.com to cancel your subscription and request to return your Hardware within 30 days of the date of delivery and to request a refund of the initial billed amount at the time of purchase of the Subscription. Please see Section 4.4 below for additional information about Returns.

3.2.2. Subscription Billing. You will be charged for your Kisi Subscription monthly or annually (depending on your selection at the time of purchase) as of the date of purchase of the Subscription, to the credit card associated with your Account (your “Payment Method”). In the event your Payment Method is not accepted or declined, you will nevertheless continue to incur monthly Subscription fees.

3.2.3. Billing Disputes; Failure to Pay. In the event there is a dispute as to Subscription fees incurred by Customer after the 30-Day Trial, Kisi, in Kisi’s sole discretion and determination, may issue such Customer a credit or discount in an amount to be determined by Kisi, in Kisi’s sole discretion, or any other concession as determined by Kisi in Kisi’s sole discretion.

3.2.4. Fee Changes. Kisi reserves the right to change fees upon thirty (30) days of written notice before each Renewal Term.

3.3. Term and Termination

3.3.1. Term. The Term shall be as defined and described in the MSA.

3.3.2. Renewal. The renewal of the Term shall be as defined and described in the MSA.

3.3.3. Termination for Cause. Termination for Cause of this Agreement shall be as defined and described in the MSA.

3.3.4. Suspension. Suspension of access to the Software with respect to Customer or any User shall be as defined and described in the MSA.

3.3.5. Effect of Termination. Upon the expiration or termination of the Agreement: (a) Kisi will terminate your and/or applicable Users’ access to your Content and User Data ; and (b) your licenses hereunder will terminate, and you will immediately cease all use of the Software and Hardware. Any section of the Agreement that, by its terms or its nature, should survive the termination or expiration of the Agreement will so survive.

3.3.6. Credits and Refunds. If there is an existing credit on the account, the cancellation will take effect upon the expiry of the credits. Any Subscription fees already incurred before the cancellation date will not be refunded to you. There are no refunds of credits on accounts.

3.3.7. Hardware. If the shipment date of your Kisi Hardware is more than 30 days prior to the date of cancellation, payment for the Hardware is nonrefundable. Please see the Hardware Warranty and Return terms in Section 4 below for additional information.

4. HARDWARE WARRANTIES; RETURNS

4.1. General. Kisi represents to the original purchaser and user of the Hardware that, for five (5) years, or for the period set forth as otherwise set forth in the applicable Documentation from the date of shipment to the location specified on the Purchase Order, the Hardware will be substantially free of defects in materials and workmanship (“Hardware Warranty”).

4.2. Remedies. Customer’s sole and exclusive remedy and Kisi’s (and its suppliers’ and licensors') sole and exclusive liability for a breach of the Hardware Warranty will be, in Kisi’s sole discretion, to replace the non-conforming Hardware. Replacement may be made with a new or refurbished product or components. If the Hardware or a component within it is no longer available, then Kisi may replace the Hardware unit with a similar product of similar function. Any Hardware unit that has been replaced under the Hardware Warranty will be covered by the terms of the Hardware Warranty for the longer of (a) 90 days from the date of the delivery, or (b) the remainder of the original Hardware Warranty period.

4.3. Exclusions. The Hardware Warranty does not extend to any non-Kisi proprietary equipment or end of life equipment. These would include the door locks, components on the door locks, and/or any other physical access control system working on the same doors as the Kisi system. Non-Kisi proprietary equipment would be subjected to the warranty terms and conditions of the respective manufacturer.

4.4. Warranty Expiration. Kisi will not be liable for malfunctions on the Hardware once the warranty expires. You will need to purchase new Hardware if you need a replacement on any part of your Kisi system. You will also be liable for any installation costs associated with replacing your existing Hardware with a new one.

4.5. New Versions; De-Commissioning. In the event that a new version of the Hardware is released by Kisi, it will be made available to the Customer for purchase. The Hardware Warranty does not extend to devices that have been de-commissioned or devices that have reached their end-of-life. Kisi will be required to send notification of any intention to de-commission any Hardware.

4.6. Hardware Returns. Customer may return Products purchased directly from Kisi within 30 days from the date of the applicable Purchase Order for any reason. Thereafter, to request a return under the Hardware Warranty, Customer must notify Kisi or, if the Products were purchased from a Reseller, the Customer must notify the Reseller, within the Hardware Warranty period. To initiate a return of a Product purchased directly from Kisi directly to Kisi, Customer or Reseller must send a return request to Kisi at support@getkisi.com and clearly state details on where and when Customer purchased the Hardware, the serial numbers of the applicable Hardware unit(s), Customer’s reason for returning the Hardware, and Customer’s name, mailing address, email address, and daytime phone number. Kisi reserves the right, in its sole discretion, to approve or deny a Hardware Return under the Hardware Warranty. All Hardware Returns will be at your own cost and expense. To be eligible for a refund under the Hardware Warranty, all components of the Hardware must be returned to Kisi at 45 Main Street, Brooklyn 11201, and Kisi reserves the right to inspect all returned Hardware prior to issuing a refund. In the event Kisi determines that the Hardware return reason was not eligible, Kisi may decline to issue a refund.

5. KISI OBLIGATIONS

5.1. General. Kisi is responsible for providing the Products in conformance with this Agreement, the applicable Purchase Order(s), and applicable Documentation.

5.2. Availability. Kisi uses its best efforts to ensure that the Hosted Software is available.

5.3. Installation. For Product installations in the United States, Kisi can arrange for Product installation through a third party provider. Installation time may vary but will take on average 10 to 20 business days. Kisi will help coordinate installations. The installation is performed by a third party company. Kisi hereby disclaims liability for and does not guarantee the work of any installers procured from Kisi recommendations. Alternatively, Product installations in the United States may be installed by self-installation. Product installations in any other country must be self-installed. Additional terms regarding Product installation are available at https://www.getkisi.com/docs.

Kisi will not be liable for any act, omission, or error of the installer of the Product and Kisi hereby explicitly disclaims any such liability. In the event Kisi assists in arranging for a third party company to install the product, Kisi shall not be liable for an error or defect in installation. Your sole recourse will be against such third party company and the terms of any agreement between you and such third party company will govern. For the purpose of clarity and avoidance of doubt, you are solely responsible for the proper installation of the Hardware and hereby waive any right to make claims against Kisi for improper installation.

5.4. Support. If Customer experiences any errors, bugs, or other issues in its use of the Products, then Kisi will use best efforts to provide Support in order to resolve the issue or provide a suitable workaround.

The fee for Support is included in the cost of the License unless otherwise agreed upon by you and Kisi in writing. As part of a Support case, Customer may grant access, in its sole discretion, to a member of Kisi’s Support team through functionality provided in the Hosted Software for a length of time determined by Customer.

6. Customer Obligations

6.1. Compliance. Customer will use the Products only in accordance with the Documentation and in compliance with all applicable laws, including procurement and maintenance of any applicable licenses and permits. Customer will ensure that none of the Products are directly or indirectly exported, re-exported, or used to provide services in violation of the export laws and regulations of the United States or any other country. If Customer operates in a regulated industry, Customer represents that it has obtained all necessary federal, local and state licenses and/or permits necessary to operate its business and is in compliance (and will use its best efforts to remain in compliance) with all local, state, and (if applicable) federal regulations regarding the conduct of its business. Kisi reserves the right to suspend use of any Products operating in violation of the obligations of this Section 6.1, following written notice to Customer (which may take the form of an email).

6.2. Account Administration. Customer is responsible for identifying one or more individuals within Customer’s organization who will act as administrator(s) of Customer’s account. Such person(s) will be responsible for, among other things, monitoring and managing access privileges of other Users.

7. Confidentiality

7.1. Confidential Information. Except as explicitly excluded below, any information of a confidential or proprietary nature provided by a party (“Disclosing Party”) to the other party (“Receiving Party”) constitutes the Disclosing Party’s confidential and proprietary information (“Confidential Information”). Kisi’s Confidential Information includes the Products and any information conveyed to Customer by Kisi, including without limitation, information shared by Kisi in connection with Support. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the receiving party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the Disclosing Party; or (iv) independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information.

7.2. Confidentiality Obligations. Each party will use the Confidential Information of the other party only as necessary to perform its obligations under this Agreement, will not disclose the Confidential Information to any third party, and will protect the confidentiality of the Disclosing Party’s Confidential Information with the same standard of care as the Receiving Party uses or would use to protect its own Confidential Information, but in no event will the Receiving Party use less than a reasonable standard of care. Notwithstanding the foregoing, the Receiving Party may share the other party’s Confidential Information with those of its employees, agents and representatives who have a need to know such information and who are bound by confidentiality obligations at least as restrictive as those contained herein (each, a “Representative”). Each party shall be responsible for any breach of confidentiality by any of its Representatives.

7.3. Additional Exclusions. A Receiving Party will not violate its confidentiality obligations if it discloses the Disclosing Party’s Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.

8. DATA PROTECTION

8.1. Security; DPA. Kisi secures the Software and Customer Data in accordance with the security practices available at getkisi.com/security. Kisi will process all Customer Data in accordance with the DPA.

9. OWNERSHIP

9.1. Kisi Property. Kisi owns and retains all right, title, and interest in and to the Software, the Usage Statistics, and all intellectual property embodied in the Hardware and accessories. Except for the limited license granted to Customer in Section 2.1, Kisi does not by means of this Agreement or otherwise transfer any rights in the Products to Customer, and Customer will take no action inconsistent with Kisi’s intellectual property rights in the Products.

9.2. Customer Property. Customer owns and retains all right, title, and interest in and to the Customer Data and does not by means this Agreement or otherwise transfer any rights in the Customer Data to Kisi, except for the limited license set forth in Section 2.2.

10. INDEMNIFICATION

10.1. By Kisi. Kisi’s indemnification terms shall be as defined and described in the MSA.

10.2. By Customer. Customer’s indemnification terms shall be as defined and described in the MSA.

11. LIMITATIONS OF LIABILITY

11.1. Disclaimer. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN THIS AGREEMENT, KISI MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING OR RELATING TO THE PRODUCTS, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT, INCLUDING UPDATES OR SUPPORT. WITHOUT LIMITING THE FOREGOING, KISI HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. KISI DOES NOT WARRANT THAT THE PRODUCTS WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS, THAT USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.

11.2. Limitation of Liability. The parties’ limitations of liability shall be as defined and described in the MSA.

12. MISCELLANEOUS

12.1. Relationship of Parties. Customer and Kisi are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between Customer and Kisi.

12.2. Choice of Law. This Agreement is governed by the laws of New York without reference to conflicts of law rules.

12.3. Notices. Any notice provided by one party to the other under this Agreement will be in writing and sent either (i) by overnight courier or certified mail (receipt requested), in the case of Customer to Customer’s address on record in Kisi’s account information and in the case of Kisi Incorporated, to 45 Main Street, Brooklyn, NY 11201, or (ii) by electronic mail to Customer’s email address on record in Kisi’s account information or to Kisi at legal@getkisi.com.

12.4. Assignment. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. In the event of an assignment by Customer in connection with an acquisition of Customer or a sale of all or substantially all of Customer’s assets, Customer’s License may be transferred to the party acquiring Customer or purchasing all or substantially all of its assets, subject to Kisi’s prior written consent, such consent not to be unreasonably withheld.

12.5. Force Majeure. A party will not be liable for any failure to perform caused by circumstances beyond its reasonable control which would otherwise make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, epidemic, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation (each, a “Force Majeure Event”). If a Force Majeure Event lasts longer than twenty (20) business days, the parties will meet to determine if performance under the Agreement can resume as agreed. If the parties cannot agree, then Kisi may terminate the applicable Purchase Order or this Agreement.

12.6. Dispute Resolution. If any disputes arise, the parties will follow the dispute resolution procedures as defined and described in the MSA.

12.7. Miscellaneous. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. If any provision of this Agreement is found unenforceable, the Agreement will be construed as if such provision had not been included.