!Kontakte Terms and Conditions
A. Background
!Kontakte is a software development company that creates industry specific, cloud-based / SaaS products and solutions that are sold to customers on a subscription basis. Our products include multiple embedded services that form the total subscription that we resell or recommend to our customers. Our products are packaged, installed and distributed through the Kontakte.io platform and interconnect to other internet services from time to time.
B. Interpretation
The online subscription form (“Order Form”) and Exhibits A and B are attached and incorporated by reference and form a part of this Agreement. In the event of any conflict or inconsistency in the definition or interpretation of any word, responsibility, schedule, or the contents or description of any task, deliverable, goods, service, or other work, or otherwise, , such conflict or inconsistency shall be resolved by giving precedence first to this Agreement and then to such other documents according to the following priority:
Order Form (including any subsequent Order Form that the parties may enter into)
Exhibit A: End-User Disclosure – Kontakte.io Service Agreement
Exhibit B: Professional Services Agreement (if required)
C. Entire Agreement
The terms of this Agreement, and the Exhibits, shall constitute the complete and exclusive statement of understanding between the parties which supersedes all previous agreements, written or oral, and all communications between the parties relating to the subject matter of this Agreement.
!KONTAKTE MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS ANY TRIAL OF THE SERVICES. IF YOU PURCHASE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Table of Contents
1.Definitions
2. Free Trials
3. Purchased Services
4. Use of the Services
5. Third-Party Providers
6. Fees and Payment for Purchased Services
7. Proprietary Rights
8. Confidentiality
9. Warranties and Disclaimers
10. Mutual Indemnification
11. Limitation of Liability
12. Term and Termination
13. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
14. General Provisions
1. DEFINITIONS
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"AppExchange" means the online directory of applications that interoperate with the Services, located at http://www.kontakte.io/appexchange or at any successor websites.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents (including online documents) for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means the products and services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.
“Subscription Term” means the subscription term specified in an Order Form;
"Trial Services" means the online, Web-based and mobile applications built by Kontakte and provided on the Kontakte.io platform and/or other designated websites as described in any materials, that are ordered by You as part of a 30-day free trial including associated offline or Third Party Applications.
"Third-Party Applications" means mobile applications, online, Web-based applications and offline software products that are provided by third parties, interoperate with the Purchased Services and the Trial Services, and are identified as third-party applications, including but not limited to Amazon.com, Google.com, Apple.com and any internet posting site(s) or those listed on the AppExchange.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased as specified on an Order Form, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
“User Guide” means any printed or online materials provided by kontakte.io to You from time to time outlining usage instructions.
"We,""Us" or "Our" means the !Kontakte company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement and Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services.
We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms for the Subscription Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions.
Unless otherwise specified in the applicable Order Form, (i) the Purchased Services are purchased as User subscriptions and may be accessed by no more than the number of Users specified in an Order Form, (ii) additional User subscriptions may be added during the Subscription Term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4. USE OF THE SERVICES
4.1 Our Responsibilities.
We shall: (i) use commercially reasonable efforts to make the Purchased Services available as close to 24 hours a day, 7 days a week, except for: (a) kontakte.io planned outages, noting that kontakte.io is obliged to provide Us with a minimum of 8 hours notice of any planned outages that will apply to the Purchased Services and which We shall use our best endeavours to ensure is scheduled to the extent practicable during the weekend hours from 6:00 p.m. Eastern Standard Time Friday to 3:00 a.m. Eastern Standard Time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror strikes, force majeure or other labor problems (other than those involving Our employees), or any unavailability arising from a failures or delay caused by the provider of a Third Party Application, and (c) provide the Purchased Services only in accordance with applicable laws and government regulations;
(ii) provide the Purchased Services
(a) in accordance with the Order Form
(b) in a diligent manner;
(c) to the standard of skill and care expected of a service provider experienced in the type of services required by the Order Form;
(d) in compliance with all applicable Laws, Australian and Singaporean standards and industry codes of conduct; and
(f) in accordance with professional principles and industry standards;
4.2. Your Responsibilities.
You shall (i) be responsible for Users’ compliance with the relevant sections of this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Purchased Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Purchased Services or their related systems or networks.
4.3. Usage Limitations.
The Purchased Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls and searches You are permitted to make against Our application programming interface, and, for Purchased Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Purchased Services provide real-time information to enable You to monitor Your compliance with such limitations.
5. THIRD-PARTY APPLICATIONS
5.1. Acquisition of Third-Party Applications.
We may offer Third-Party Applications for sale or use under and if You agree to purchase these Third Party Applications they will be specified on an Order Form. Any other acquisition by You of the Third-Party Applications and implementation, customisation and other consulting services, and any exchange of data between You and the provider of any Third-Party Application, is solely between You and the provider of any Third-Party Application. We do not warrant or support Third Party Applications, whether or not they are designated by Us as “certified” or otherwise, except to the extent specified in an Order Form. No purchase of Third Party Applications is required to use the Purchased Services.
5.2. Third-Party Applications and Your Data.
If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data by the provider of any Third Party Application resulting from any such access by the provider of any Third-Party Application. The Purchased Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees.
You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees for the Purchased Services are quoted and payable in United States of America (USD) dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are calculated based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term.
6.2. Invoicing and Payment.
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Usto charge such credit for all Purchased Services listed in the Order Form for the initial Subscription Term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information.
6.3 Disputed Invoices
You may withhold payment of any amount that you dispute in good faith until the dispute has been resolved, provided that You pay within the agreed timeframe the undisputed amounts in an invoice. Any invoices that are not disputed by You within 30 days of receipt will be deemed to have been accepted.
6.4. Overdue Charges.
If any charges are not received from You by the due date, and those charges are not the subject of a dispute pursuant to clause 6.3, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
6.5. Suspension of Service and Acceleration.
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorised Us to charge to Your credit card), and those charges are not the subject of a dispute pursuant to clause 6.3, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
6.6. Taxes.
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Restrictions.
You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of Your Data.
As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
7.4. Suggestions.
We shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
8. CONFIDENTIALITY
8.1. Definition of Confidential Information.
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
8.3. Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
9. WARRANTIES AND DISCLAIMERS
9.1. Mutual Warranties.
Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not intentionally transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
9.2. Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us.
We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
10.2. Indemnification by You.
You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
10.3. Exclusive Remedy.
This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $25,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement.
This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased User Subscriptions.
User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein. You may elect to renew the Subscription Term on the same terms and conditions for an additional term of the same period by giving Us 30 days written notice. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case, if agreed by You the pricing increase shall be effective upon renewal and thereafter.
12.3. Termination for Cause.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Termination arising from Failure of the provider of a Third Party Application
We may terminate this Agreement at any time but by providing as much notice as is reasonably possible if We are no longer able to provide the Purchased Services as a result of the failure or unavailability of any Third Party Application. Upon any termination by Us under this clause, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination.
12.5. Refund or Payment upon Termination.
Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.6. Return of Your Data.
Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, and subject to payment by You of all amounts due under this agreement, We will make available to You for download, at your cost (i) Your kontakte.io Data elements in comma separated value (.csv) or similar format along with attachments, so long as the kontakte.io instance is still available and, (ii) Your non Kontakte.io Data elements in comma separated value (.csv) or similar format along with attachments so long as the non kontakte.io instance(s) are still available. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
12.7. Surviving Provisions.
Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.2 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.2. Agreement to Governing Law and Jurisdiction.
Each party agrees to the governing law for this agreement to be the law of the Republic of Singapore without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts of Singapore.
13.3. Waiver of Jury Trial.
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
14. GENERAL PROVISIONS
14.1. Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.2. Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.3. Severability.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.4. Attorney Fees.
You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment)
14.5. Assignment.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.6. Entire Agreement.
This Agreement, which is an exhibit to the Order Form, including all exhibits and addenda thereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Exhibit A: Kontakte.io End-User Disclosure – Kontakte.io Service Agreement
Background
In order to provide you with the Reseller Application as part of the Purchased Services, We are making available to you a software platform provided by !Kontakte (the “Platform”).
In order to use the Reseller Application, you are required to acknowledge and agree to the terms of these Kontakte.io Service Terms of Use.
Definitions
"AppExchange" means the online directory of on-demand applications that work with the Service, located at http://www.appexchange.com or at any successor websites.
“Reseller” means Kontakte.io.
“Reseller Application means !Kontakte’s product known as Kontakte.io and “!K”
"Platform" means the mobile application ‘App’, online, Web-based platform service provided by Kontakte to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“Kontakte Service” means the mobile application ‘App’, online, Web-based application and platform service generally made available to the public via http://www.kontakte.io and/or other designated Apps and websites, including associated offline components but excluding AppExchange applications.
“!Kontakte” and “!K” means Kontakte.io, (Singapore).
"Users" means Your employees, representatives, consultants, contractors or agents who are authorized to use the Purchased Services subject to the terms of these Kontakte Service Terms of Use as a result of a subscription to the Reseller Application having been purchased for such User, and have been supplied user identifications and passwords by You (or by Kontakte.io or Reseller at Your request).
“You” and “Your” means the customer entity which has contracted to purchase subscriptions to use the Reseller Application subject to the conditions of these Kontakte Service Terms of Use, together with any other terms required by Reseller.
"Your Data" means all electronic data or information submitted by You as and to the extent it resides in the Service.
1) Use of Service.
a) Your browser may not support display of this image. Each User subscription to the Reseller Application shall entitle one User to use the Service via the Reseller Application, subject to the terms of these Kontakte Service Terms of Use, together with any other terms required by Reseller. User subscriptions cannot be shared or used by more than one User (but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment with You or otherwise changed job status or function and no longer require use of the Service). For clarity, Your subscription to use the Platform hereunder does not include a subscription to use the Kontakte Service. If You wish to use the Kontakte Service or any of its functionalities or services, or to create or use additional custom objects beyond those which appear in the Reseller Application in the form that it has been provided to You by Your Reseller, visit www.kontakte.io to contract directly with Kontakte for such services. In the event Your access to the Reseller Application provides You with access to the Kontakte Service generally or access to any Kontakte Service functionality within it that is in excess to the functionality described in the Reseller Application’s user guide, and You have not separately subscribed under a written contract with Kontakte for such access, then You agree to not access and use such functionality, and You agree that Your use of such functionality, or Your creation or use of additional custom objects in the Reseller Application beyond that which appears in the Reseller Application in the form that it has been provided to You by your Reseller, would be a material breach of this Agreement.
b) Notwithstanding any access You may have to the Platform or the Kontakte Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, Kontakte has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
c) You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the Kontakte Service, and shall notify Reseller or kontakte.io promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform and the Kontakte Service.
d) Your browser may not support display this image. You shall use the Platform and the Kontakte Service solely for Your internal business purposes and shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform or the Kontakte Service available to any third party, other than to Users or as otherwise contemplated by these Kontakte Service Terms of Use; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Platform or the Kontakte Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Platform or the Kontakte Service or its related systems or networks.
e) You shall not (i) modify, copy or create derivative works based on the Platform or the Kontakte Service; (ii) frame or mirror any content forming part of the Platform or the Kontakte Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the Kontakte Service; or (iv) access the Platform or the Kontakte Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform or the Kontakte Service.
2) Third-Party Providers.
Reseller and other third-party providers, some of which may be listed on pages within Kontakte’s website and including providers of AppExchange applications, offer products and services related to the Platform, the Kontakte Service, and/or the Reseller Application, including implementation, customization and other consulting services related to customers’ use of the Platform and/or the Kontakte Service, and applications (both offline and online) that interoperate with the Platform, Kontakte Service, and/or the Reseller Application, such as by exchanging data with the Platform, the Kontakte Service, and/or the Reseller Application, or by offering additional functionality within the user interface of the Platform, the Kontakte Service, and/or the Reseller Application through use of the Platform and/or Kontakte Service's application programming interface. Kontakte does not warrant any such third-party providers or any of their products or services, including but not limited to the Reseller Application or any other product or service of Reseller, whether or not such products or services are designated by Kontakte as "certified," "validated" or otherwise. Any exchange of data or other interaction between You and a third-party provider, including but not limited to the Reseller Application, and any purchase by You of any product or service offered by such third-party provider, including but not limited to the Reseller Application, is solely between You and such third-party provider. In addition, from time to time, certain additional functionality (not defined as part of the Platform or Kontakte Service) may be offered by Kontakte or Reseller to You, for an additional fee, on a pass-through or OEM basis pursuant to terms specified by the licensor and agreed to by You in connection with a separate purchase by You of such additional functionality. Your use of any such additional functionality shall be governed by such terms, which shall prevail in the event of any inconsistency with the terms of these Kontakte Service Terms of Use.
3) Proprietary Rights.
Subject to the limited rights expressly granted hereunder, Kontakte reserves all rights, title and interest in and to the Platform and the Kontakte Service, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth in these Kontakte Service Terms of Use. The Platform and the Kontakte Service is deemed Kontakte confidential information, and You will not use it or disclose it to any third party except as permitted in these Kontakte Service Terms of Use.
4) Compelled Disclosure.
If either You or Kontakte is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
5) Suggestions.
You agree that Kontakte shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into any Kontakte products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the Kontakte Service.
6) Termination.
Your use of the Platform and the Kontakte Service may be immediately terminated and/or suspended upon notice due to (a) a breach of the terms of these Kontakte Service Terms of Use by You or any User, (b) the termination or expiration of Reseller’s agreement with Kontakte pursuant to which Reseller is providing the Platform as part of the Reseller Application to You, and/or (c) a breach by Reseller of its obligations to Kontakte with respect to the subscriptions it is providing to You in connection with these Kontakte Service Terms of Use.
7) Subscriptions Non-Cancelable.
Subscriptions for the Platform and the Kontakte Service are non-cancelable during a subscription term, unless otherwise specified in Your agreement with Reseller.
8) Data Storage.
The Platform and Kontakte Service includes a certain cumulative amount of storage per User subscription for no additional charge. Contact Your Reseller for additional information. Additional storage may be available for purchase from the Reseller.
9) No Warranty.
KONTAKTE.IO MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE KONTAKTE SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. KONTAKTE.IO MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE RESELLER APPLICATION. KONTAKTE.IO DOES NOT REPRESENT OR WARRANT THAT (A) THE RESELLER APPLICATION WILL BE AVAILABLE, SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH THE KONTAKTE.IO SERVICE OR ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SYSTEM OR DATA, (B) THE RESELLER APPLICATION, THE PLATFORM OR THE KONTAKTE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY DATA STORED USING THE RESELLER APPLICATION WILL BE ACCURATE, RELIABLE, OR SECURE, (D) ERRORS OR DEFECTS IN THE RESELLER APPLICATION, THE PLATFORM, OR THE KONTAKTE SERVICE WILL BE CORRECTED, OR (E) THE RESELLER APPLICATION OR THE SYSTEMS USED BY RESELLER TO MAKE RESELLER APPLICATION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PLATFORM AND THE KONTAKTE SERVICE IS PROVIDED STRICTLY ON AN "AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KONTAKTE.COM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO RESELLER APPLICATION AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10) No Liability.
IN NO EVENT SHALL KONTAKTE HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11) Further Contact.
Kontakte may contact You regarding new Kontakte service features and offerings.
12) Google Programs and Services.
Platform or Kontakte Service features that interoperate with Google programs and services depend on the continuing availability of applicable Google application programming interfaces (“APIs”) and programs for use with the Platform and the Kontakte Service. If Google Inc. ceases to make such APIs and/or programs available on reasonable terms to Kontakte, Kontakte may cease providing such features without entitling You or Reseller to any refund, credit, or other compensation.
13) Apple Programs and Services.
Platform or Kontakte Service features that interoperate with Apple programs and services depend on the continuing availability of applicable Apple application programming interfaces (“APIs”) and programs for use with the Platform and the Kontakte Service. If Apple Inc. ceases to make such APIs and/or programs available on reasonable terms to Kontakte, Kontakte may cease providing such features without entitling You or Reseller to any refund, credit, or other compensation
14) Third Party Beneficiary.
Kontakte shall be a third party beneficiary to the agreement between You and Reseller solely as it relates to these Kontakte Service Terms of Use.
Exhibit B- Professional Services Agreement
The Professional Services work described in this Professional Services Agreement will be carried out under the following terms.
Price & Payment Terms
100% of the total amount due is invoiced on acceptance of this proposal (i.e. on the date You sign the attached Order Form or the date on which work commences, whichever is sooner) and payable to Kontakte in accordance with the payment terms specified in the Agreement;
The above amounts do not include any work other than as described in this document. We will only be obliged to perform other work if we agree to do so in writing. Additional work will be charged at our then current daily rate, per resource (or a pro rata sum for any part day) and will be payable within 30 days of us giving you an invoice for that work.
Travel & Accommodation
All reasonable travel and/or accommodation costs (including taxi fares) and any other project expenses, incurred on Customer’s behalf will be billed separately to the Customer and will be payable by the Customer provided that in all cases the We have first obtained Your prior written approval to incur those costs, expenses, fees or charges. Please note that for flights and accommodation arranged and booked by Kontakte a 10% administration fee will be charged on top of the actual cost. All expense invoices are payable within 14 days and receipts are available on request.
Third Party Requirements
Any third party technology (hardware or software) which we require to provide the services to you (other than our own tools and equipment) are not included and it is your responsibility to provide that technology. Kontakte will organize third party services to support your engagement (e.g. training room hire, laptop hire etc) if required. A 10% administration fee will be added to the cost of the product or service should these additional services be utilised.
Warranty
We warrant to you that we will perform the services with due care and skill and that all deliverables provided to you under this agreement will comply in all material respects with any specifications or description set out in this document (unless you agree otherwise). If we breach any of these warranties then, without any additional charge to you and as your sole remedy, we will, at our option, replace or repair the goods or provide the services again.
Ownership of deliverables
Each party retains ownership over any intellectual property owned by that party and nothing in this agreement acts to assign to the other party any title in its intellectual property. You are permitted to use the deliverables we provide to you under this agreement for your own internal business purposes, without having to pay us any royalties. This right is non-transferable.
Terms and Termination
Either party may terminate this agreement by giving written notice to the other party, if that other party breaches any obligation under this agreement and the breaching party has not remedied the breach within 30 days after receipt of that notice. If this agreement is terminated, then in addition to any other rights we have at law, we will be entitled to payment from you for the services we have provided to you up to the date of termination. If the services are not being provided on a time and materials basis then the amount payable will be calculated at our then current standard rates per working day, per resource, plus expenses.
Limitation of Liability
Nothing in this agreement will operate so as to exclude the application of any of the provisions of the Consumer Protection (Fair Trading) Act 2009 (Singapore), where the relevant legislation would render it void to do so. To the extent that we are able to do so, we limit our liability for a breach of any condition or warranty implied by such legislation, at our option, to replacing or repairing goods or providing the services again.
Our liability (whether in contract, tort (including negligence) under statute, or otherwise) will not extend to any of your lost staff time, any loss of profit, savings, revenue, interest or goodwill, or for loss of, or loss of use of, any software or data, computer or other equipment or plant, or for losses or liabilities in relation to any third party or for any failure or delay caused by events beyond our reasonable control, including, without limitation, your failure to furnish necessary information, transportation delays, communication or equipment failures or labor disputes or for any consequential, indirect, incidental or special loss, even if we have been advised of the possibility of such loss and even if such loss is caused by our negligence or that of our agents or contractors. In all other circumstances, our liability (whether in contract, tort (including negligence), under statute, or otherwise), for any and all claims arising under or in connection with this agreement will not in the aggregate exceed the fees received by us as at the date on which the event which gave rise to the action first occurred.
Dispute Resolution
The parties agree that if there is a dispute they will work together in good faith first, to resolve the matter internally by escalating it to higher levels of management and then, if necessary, to use a mutually agreed alternative dispute resolution technique prior to resorting to litigation.
!Kontakte Privacy Policy
!Kontakte is a web based platform and mobile application “App” where users subscribe, to either find a specialist contract or contractor. We care about your privacy and want to help you understand how we collect, use and share your personal information. This privacy policy applies to both our mobile App and web based platform, and is part of our terms of use.
Information You Provide
This is information that you provide to us such as your name, professional details and payment information. The information we collect is different depending on if you are a company or an independent contractor.
All Accounts
To create an account on !Kontakte you have to provide your email address. If you are a contractor you also provide your Curriculum Vitae.
Contractor Subscribers
A contractor subscriber is someone who subscribes through the !Kontakte App with the aim of finding a short term contract with a company in various industries. When you subscribe, you provide us with an email address and your professional details, and in turn we create a customer record that contains your email address.
If you are successful in securing a contract a ‘job’ through !Kontakte we then charge you a monthly subscription to keep using the service. As part of the subscribing process you provide !Kontakte with your credit card and payment information.
Company or ‘Enterprise’ subscribers
An ‘Enterprise’ subscriber is a company or a recruiter who subscribes with the aim of finding specialist-contractors to meet the needs of projects or in the case of recruiters-clients who have contracts available.
To become an Enterprise subscriber, you must be a registered company or recruiter. We collect and process your information along with any additional information you add to your profile. To subscribe you have to create an account and provide some company and/or personal details and credit card information. You must also provide us with additional information for tax purposes.
For both contractors and enterprise subscribers, we collect information automatically as you navigate the site or through our third party analytics providers. We may store usage information such as the type of device you use to access !Kontakte, your operating system, browser type, IP address, and device ID, the pages you visit or request, links clicked, referring sites, user interactions and your search terms. We also derive your location from your IP address.
Do Not Track
Our service does not support Do Not Track requests at this time, which means our third party analytics providers may associate your usage on !Kontakte with your usage on other sites.
Cookies
We use Google Analytics to see how you use !Kontakte so we can improve in a variety of ways. We may use other cookie based data analytics in future versions of our platform but will notify you if we do. We encourage you to read the Google privacy policy. If you prefer to not have data reported by Google Analytics, you can install the Google Analytics Opt-out Browser Add-on.
How We Use Your Information
We never sell your information to anyone. We use your information to:
· Provide !Kontakte services to you.
· Allow you to sign in to your account.
· Allow you to find a contract or contractor through !Kontakte.
· Send you emails relevant to your usage, as controlled by your email preferences.
· Reply to your questions.
· Understand how you use the service and market !Kontakte to you, including suggesting companies or contractors or other opportunities you may be interested in.
· Create better tools for companies, recruiters to serve contractor-subscribers.
· Conduct research and development to improve !Kontakte and develop future products that our users may be interested in by analysing how you use it.
· Prevent fraud and abuse on !Kontakte.
If you are a contractor-subscriber, the following information is shared with the companies and recruiter-subscribers:
· Your email address and direct contact information (currently via Whats App).
· Your CV, including designation, location, qualifications, nationality and availability.
Personally Identifiable Information (PII) is data that includes a personal identifier like your name, email or address, or data that could reasonably be linked back to you. We will only share this data under the following circumstances:
· With your permission, with contractors and/or recruiters who may short-list you and offer you a contract.
· With companies that are contractually engaged in providing us with services, such as email management, analysing data trends, credit card processing and fraud detection and prevention. These companies may have access to personal information to perform their services and are obligated by contract to safeguard any PII they receive from us.
· To protect the security or integrity of !Kontakte, and to protect the rights, property, or safety of !Kontakte, its employees, users, or others, if we believe that disclosure is reasonably necessary to comply with a law, regulation, valid legal process (e.g., subpoenas or warrants served on us). If we are going to release your data, we will do our best to provide you with notice in advance by email, unless we are prohibited by law from doing so.
· In connection with the sale, merger, bankruptcy, sale of assets or reorganization of our company. We will notify you if a different company receives your PII. The promises in this privacy policy apply to any data transferred to a new entity.
Information Shared with the Public
Currently, there is no subscriber profile information that is available to the public.
Your Preferences and Rights over Data
Choosing Your Preferences
The Settings link is located on the page after you log in. Settings, lets you see your account preferences. You can see and adjust your settings by viewing your preferences and, if you wish, by changing your selections.
Exercising Your Data Rights
You can exercise rights over your data in the following ways:
Modifying the Information in Your Account. You can modify or delete certain information associated with your account on the settings pages, as described in the “Choosing Your Preferences” section above. This includes subscriptions and information provided to companies and recruiters.
Disabling Your Account. You can permanently disable and/or delete your account emailing contact@kontakte.io, and requesting that we do so. Please be aware that this is a final act and you cannot log into your account again after taking this action. When you email us requesting to do so, we will remove your ability to log in within 30 days and delete all data on our servers associated with your account. This will automatically disable any future payments and contract opportunities. If you create a new account, you will be asked to use a different email address from the one you used previously. Even if an account is deleted, some information may be retained by our analytics providers on their own servers.
Removing Marketing Emails. You can stop receiving marketing emails by clicking the unsubscribe link from the bottom of any email sent to you. While this removes your marketing emails, service related emails are still sent, including how you can optimize your !Kontakte experience and suggestions for which companies to follow.
Understanding Our Data Retention Periods. We retain your information for ten years, unless you disable your account information from you account settings. Please note that once you disable your account, you will not be able to log in again. If you want to log into !Kontakte again by creating a new account, you may be prompted to use a new email address from the one you previously used on your disabled account.
Additional Questions Related to Privacy
For additional privacy-related questions about your account, you may email us at contact@kontakte.io.
European Union Data Transfer
Transfer of Data to Singapore
We are based in Malaysia and Singapore. By using our services you consent to the transfer of your personal data to the Singapore, and to the processing and use of that personal data in Singapore. This processing and use are limited to what is described in this privacy policy and the terms of use.
Marketing Activities
We may use your information to offer you products and services that we think may be of interest to you, unless you have opted out of marketing communications. If you are in the European Economic Area, where required by applicable law, we will obtain your consent before sending you any marketing communications. You may object to the use of your data for direct marketing purposes at any time, free of charge, when we collect your personal information and in every marketing communication. We will never provide your information to third parties for marketing purposes without your prior consent.
Security
The security of your personal information is important to us and we follow industry standards to protect it. Full credit card numbers are never accessed by our system, and the most sensitive data we store is encrypted to keep it secure. To further protect your information we suggest using a strong and unique password for your !Kontakte account.
Anti- Slavery Convention and rights of workers
!Kontakte strictly follows the international, ‘Slavery Convention’ as set out by the United Nations Commission for Human Rights on 9 March, 1927 and including recent amendments.
!Kontakte supports international labour standards and policies and the rights of contractors to ‘decent’ work as set out under the International Labour Organisation (ILO ) and related United Nations conventions.
Children
!Kontakte is not directed at children under the age of 18, and they may not create an account or otherwise use !Kontakte.
Changes
We may sometimes make changes to this policy. If we make material changes that adversely affect your rights under this policy, we will let you know by posting an announcement on the site or sending you an email prior to the changes coming into effect. Continuing to use !Kontakte after a change to this policy means you accept the new policy.
If you have any questions, please email contact@kontakte.io
Last updated on 30 November, 2019.