Kainos Smart Subscription Service Terms and Conditions
These Kainos Smart Subscription Services Terms and Conditions are entered into and effective as of the Effective Date by and between
Kainos Software Limited, a Limited company, with registered company number NI019370, whose registered address is Kainos House, 4-6
Upper Crescent, Belfast, County Antrim BT7 1NT, United Kingdom ("Kainos") and the Customer detailed in the Order Form (“Customer”)
each a ‘Party’ and together the ‘Parties’.
Kainos provides the Subscription Service and Customer wishes to subscribe to that Subscription Service, subject to the rights and obligations
of each Party as set out in the Agreement. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the Parties agree as follows:
1
DEFINITIONS AND INTERPRETATION
1.1
In this Agreement, unless expressly stated to the contrary, the following expressions shall have the following meanings:
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.
Agreement
means these Kainos Smart Subscription Service Terms and Conditions
including the Smart SLA, any annexes or appendices to them and any
executed Order Form.
Authorised Person(s)
means Customer’s Staff, Affiliates (and Staff of Affiliates) and third parties
authorised to access the Subscription Service or access and receive
Customer Data by the Customer in writing, by use of a valid Customer
login to the Subscription Service or by any other system integration or
data exchange process.
Hosting Platform
means the Amazon Web Services cloud hosting platform set out in the
Order Form.
Customer Data
means all electronic data or information submitted by Customer or
Authorised Persons to the Subscription Service.
Effective Date
means the date from which the Subscription Services will be made
available to the Customer as set out in the Order Form.
Malicious Code
means viruses, worms, time bombs, Trojan horses and other harmful or
malicious code, files, scripts, agents or programs.
Order Form
means the document by which the Customer contracts the Subscription
Services, in the event of any conflict between these Kainos Smart
Subscription Services Terms and Conditions and the terms of any such
Order Form, the provisions of the relevant Order Form shall prevail.
Smart SLA
means the service level availability applicable to the Subscription
Services, which may be updated by Kainos from time to time.
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Staff
means employees, consultants, workers, independent contractors,
contingent workers, seasonal staff and retirees of the Customer and its
Affiliates whose business records may be tested by the Subscription
Service as detailed in the Order Form.
Subscription Service(s)
means the Kainos software as a service application known as ‘Smart’, a
cloud-based, automated testing tool for Workday implementations
providing functionality to automate the testing of Workday business
processes and integrations as described in the Guides and as subscribed
to under an Order Form.
Subscription Term
means the period starting on the Effective Date and ending on the End
Date, as specified in the relevant Order Form.
Guides
means the Kainos electronic and hard copy user guides for the
Subscription Service which may be updated by Kainos from time to time.
2
SERVICES
2.1
Provision of Subscription Service. Kainos shall, for the Subscription Term, make the Subscription Services available to the
Customer, and the Authorised Persons in accordance with the Guides and the Smart SLA, solely for Customer’s own internal
business purposes subject to the terms and conditions of the Agreement. All rights not expressly granted to Customer are
reserved by Kainos and its licensors. Customer may not publish the results of any tests it conducts to monitor the availability,
performance or functionality of the Subscription Services, or use the Subscription Services for any competitive purposes.
Customer agrees that its purchase of subscriptions is neither contingent upon the delivery of any future functionality or
features nor dependent upon any oral or written public comments made by Kainos with respect to future functionality or
features of the Subscription Services. The Subscription Service charges paid by a Customer provide the Customer with a right
to use the Subscription Services for the modules set out in the Order Form. Where additional modules are released they shall
be available for Customer to subscribe to at the then current rates.
2.2
Platform. It is agreed and acknowledged that the Subscription Service is hosted on the Hosting Platform and the AWS region
in which the data will be stored will be determined by the Hosting Platform Location, specified in the Order Form. Where the
Hosting Platform Location is within the EEA the data will be hosted within the EEA. Where the Hosting Platform Location is
the United States of America the data will be hosted in the United States of America. It is acknowledged that the Subscription
Services will involve the transfer, storage and processing of data (including Customer Data) at the specified Hosted Platform
Location; the Customer specifically consents to this and will procure the same consent from any Authorised Persons using
the Subscription Service in respect of data controlled by such Authorised Persons.
2.3
Additional Staff. Unless otherwise specified in the relevant Order Form, the Customer is permitted to use the Subscription
Services for the number of Staff detailed in the Order Form. If at any time during the Subscription Term, the Staff in respect
of which the Subscription Service is used increases from the number of Staff set out in the Order Form the Customer shall
immediately inform Kainos. An additional subscription charge will be payable in respect of the increased number of Staff
calculated pro rata to (i) the charge detailed in the Order Form, (ii) the percentage Staff increase, and (iii) the duration of the
Subscription Term remaining. The term of the additional subscriptions shall be coterminous with the expiration of the
Subscription Term in effect at the time that any additional Staff are added.
2.4
Authorised Persons. Customer may permit the Authorised Persons to use the Subscription Service subject to the terms of
this Agreement. Customer is responsible for the compliance by the Authorised Persons with the terms of this Agreement.
3
USE OF THE SUBSCRIPTION SERVICES
3.1
Kainos Responsibilities. Kainos shall:
(i) in addition to its confidentiality obligations hereunder, not use, modify or disclose to anyone other than Authorised
Persons the Customer Data; (ii) to the extent the Customer Data comprises “personal data” within the meaning of applicable
data protection laws and regulations, and in respect of which it is hereby acknowledged that Kainos is acting as data
processor only: (a) process the Customer Data in accordance with this Agreement, Customer’s instructions and applicable
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data protection laws and regulations; (b) take appropriate technical, organisational and security measures against
unauthorised access to or unauthorised alteration, disclosure, destruction or loss of Customer Data; and (c) take reasonable
steps to ensure that Kainos employees involved in providing the Subscription Service and the Smart SLA are aware of and
are suitably trained in such technical, organisational and security measures; and (iii) maintain availability of the Subscription
Service in accordance with the Smart SLA.
3.2
Customer Responsibilities. Customer:
(i) has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property
ownership or right to use of all Customer Data and shall ensure that all instructions given by it to Kainos in respect of the
Customer Data will be in compliance with applicable data protection legislation;
(ii) shall use reasonable endeavours to prevent unauthorised access to, or use of, the Subscription Service, and notify Kainos
promptly of any such unauthorised access or use; and
(iii) shall comply with all applicable local, state, federal and foreign laws in respect of the Subscription Service , including
without limitation all applicable data protection laws and regulations.
(iv) may enable access to the Subscription Service by Authorised Persons solely for its internal business purposes as
contemplated by this Agreement and shall not:
(a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit
or make the Subscription Service available to any third party, other than to Authorised Persons or as otherwise
contemplated by this Agreement;
(b) use the Subscription Service to send, process 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;
(c) use the Subscription Service to send or store Malicious Code;
(d) interfere with or disrupt the integrity or performance of the Subscription Service or the data contained therein;
(e) attempt to gain access to the Subscription Service or its related systems or networks in a manner not detailed in
the Guides;
(f) modify or make derivative works based upon the Subscription Service or the content;
(g) create Internet "links" to the Subscription Service or "frame" or "mirror" any content on any other server or
wireless or Internet-based device; or
(h) reverse engineer or access the Subscription Service in order to (i) build a competitive product or service, (ii) build
a product using similar ideas, features, functions or graphics of the Subscription Service, or (iii) copy any ideas,
features, functions or graphics of the Subscription Service.
(v)
is responsible for all Authorised Persons use of the Subscription Service and their compliance with this Agreement as
if such Authorised Persons were the Customer. Customer is liable for the acts and omissions of all Customer
Authorised Persons relating to this Agreement.
Notwithstanding any other remedies available to Kainos, if Kainos reasonably believes the Customer is failing in the Customer
responsibilities detailed at (iv) (a) to (iv)(h) inclusive, Kainos will inform the Customer. If the Customer has not remedied the
situation within 2 working days following notification Kainos may suspend access to the Subscription Service pending resolution.
Kainos may suspend the Subscription Service without notice in connection with illegal content or use, where such content may
disrupt or threaten the Subscription Service or as required to comply with law or other judicial or government order.
3.3
Subscription Service Usage.
(i)
The maximum number of test cases than may be run in any 12 month period is limited to the greater of 10,000 or
twice x the number of Staff (the “Test Case Limit”).
(ii)
If the Customer exceeds the Test Case Limit they will be charged on a pro-rata basis calculated by reference to the
charge for Subscription Term year in which the Test Case Limit was exceeded.
(iii)
Kainos will notify Customer when the Customer reaches approximately 90% of its Test Case Limit and the Customer
shall have no responsibility to pay additional charges unless and until Kainos has notified the Customer in accordance
with this section 3.3.
3.4
Deletion of Data.
(i)
All Customer Data loaded into the Subscription Service will be deleted by Kainos within thirty (30) days following the
end of the Subscription Term.
(ii)
Where the Subscription Term exceeds twelve (12) months, Customer Data will be retained within the Subscription
Service for twelve (12) months from entry into the Subscription Service.
(iii)
Customer Data that is twelve (12) months or more old will (unless legally prohibited) be deleted from the Subscription
Service on a monthly basis by Kainos. This is an automatic process and Kainos will not contact the Customer prior to
the monthly data deletion cycle.
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(iv)
The Customer may request that Kainos delete Customer Data prior to expiry of the twelve (12) month holding period
and Kainos will use reasonable endeavours to comply with that request in the next monthly data deletion cycle and
shall notify the Customer once such Customer Data has been deleted.
3.5
Publicity.
(i)
Customer agrees that within three (3) months of signing the Agreement Kainos may issue a press release announcing
Customer as a user of Kainos technology.
(ii)
Subject to section 3.5 (i), neither party may issue press releases relating to this Agreement without the other party’s
prior written consent which shall not be unreasonably withheld or delayed.
(iii)
Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the
other party’s standard guidelines. Kainos will may not use the Customer as a reference site or for quotes etc without
prior agreed permission on a case by case basis
4
CHARGES & PAYMENT
4.1
Charges. Save where the Customer terminates for cause under and in accordance with section 10.2, the payment obligations
cannot be cancelled and all amounts paid are non-refundable. Customer is responsible for paying for all charges detailed in
the Order Form for the entire Subscription Term (subject to any agreed early termination) set out in the Order Form. Except
as otherwise specified herein or in an Order Form, all charges are quoted and payable in the currency specified in the Order
Form. In respect of the Subscription Service, charges are based on the Subscription Services purchased and not actual usage.
Usage at a level below that set out in the Order Form will not affect the charges due.
4.2
All pricing terms are confidential, and the Customer agrees not to disclose them to any third party except that the Customer
is permitted to disclose such pricing terms to Authorised Persons in accordance with the receipt of the Subscription Services
or in connection with the entering into of this Agreement.
4.3
Invoicing & Payment. Charges for the Subscription Service will be invoiced in advance or otherwise in accordance with the
relevant Order Form. If a Customer purchase order is required for invoicing and/or payment, the Customer will ensure the
purchase order is raised and supplied to Kainos within two weeks following the Effective Date. In the event the Customer
fails to do so, Kainos may suspend provision of the Services without liability until receipt of such purchase order. Charges
must be paid within thirty (30) days following the invoice date. Customer is responsible for maintaining complete and
accurate billing and contact information on the Subscription Service. Kainos will invoice the Customer for any additional
charges arising under section 2.3 of this Agreement within thirty (30) days following receipt of notification from the Customer
of the increase in Staff numbers.
4.4
Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges
then under reasonable and good faith dispute), at Kainos’ discretion and without further notice, interest at the rate of 3%
above the Bank of England base rate from time to time, or the maximum rate permitted by law, whichever is lower, from
the date such payment was due until the date paid.
4.5
Suspension of Services. If Customer’s account is 30 days or more overdue (except with respect to charges then under
reasonable and good faith dispute), Kainos shall notify Customer of such overdue payment. In the event such payment
remains overdue following 30 days of such notice, in addition to any of its other rights or remedies, Kainos reserves the right
to suspend the Subscription Services, without liability to Kainos, until such amounts are paid in full.
4.6
Taxes. Unless otherwise stated, Kainos’ fees will include value added tax as applicable but will not include any direct or
indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, use
or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes (if any) associated with its purchases
hereunder. If Kainos has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the
appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Kainos with a valid tax exemption
certificate authorised by the appropriate taxing authority.
4.7
Charges Increase. The charges detailed in the Order Form and the SLA are fixed at the level set out in the Order Form and
SLA for the Subscription Term, save for annual increases on the anniversary of the Effective Date in line with any increase
over the preceding twelve (12) month period in: (i) where the Customer is an entity incorporated in the United States of
America, the Consumer Price Index as compiled by the Bureau of Labor Statistics, or (ii) where the Customer is an entity
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incorporated outside of the United States of America, the Retail Price Index (“RPI”) published by the Office for National
Statistics of the UK.
5
PROPRIETARY RIGHTS
5.1
Reservation of Rights. Subject to the limited rights expressly granted hereunder, Kainos alone (and its licensors, where
applicable) reserves all rights, title and interest in and to the Subscription Service, including all related intellectual property rights.
No rights are granted to Customer hereunder other than as expressly set forth herein. This Agreement is not a sale and does not
convey to Customer any rights of ownership in or related to the Subscription Service, Kainos technology or the intellectual
property rights owned by Kainos or its licensors. The Kainos name, the Kainos logo and the product names associated with this
service are trademarks of Kainos or third parties and no right or license is granted to use them.
5.2
Customer Data. Customer and Authorised Persons (as applicable) exclusively own all rights, title and interest in and to all
Customer Data. Customer Data is deemed Confidential Information under this Agreement. Kainos shall not access Customer’s
accounts, including Customer Data, except in accordance with this Agreement, to provide the Subscription Services and to
respond to service or technical problems or at Customer’s request. For these purposes Customer consents to Kainos having access
to the Customer’s account in the Subscription Service.
5.3
Suggestions. Kainos shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or
incorporate into the Subscription Service any suggestions, enhancement requests, recommendations or other feedback provided
by Customer, or Authorised Persons relating to the operation of the Subscription Service.
6
CONFIDENTIALITY
6.1
Definition of Confidential Information. “Confidential Information” means all confidential information of a party (“Disclosing
Party”) disclosed 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,
including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder),
the Customer Data, the Subscription Service, business and marketing plans, technology and technical information, product
designs, and business processes. Confidential Information (except for Customer 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)
was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is
received from a third party without breach of any obligation owed to the Disclosing Party.
6.2
Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose
outside the scope of this Agreement, except with the Disclosing Party’s prior written permission.
6.3
Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner
that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable
care).
6.4
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it
shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable
assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5
Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing
Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other
remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any
other available remedies are inadequate.
7
WARRANTIES & DISCLAIMERS
7.1
Warranties. Each Party represents and warrants that it has the legal power to enter into this Agreement and shall comply with
all laws applicable to it related to data privacy and protection of personal data and that on entering into this Agreement and on
an on-going basis for the duration of this Agreement (i) it (and its senior officers, employees and sub-contractors) will not engage
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in any activity, practice or conduct which would constitute and offence under The Bribery Act 2010 and (ii) it (and its senior
officers, employees and sub-contractors) has not been investigated, prosecuted or convicted of any offence under The Bribery
Act 2010, and (iii) has and shall maintain throughout the duration of this contract its own policies and procedures. Kainos
represents and warrants that (i) the Subscription Service shall perform materially in accordance with the Guides; (ii) the
functionality of the Subscription Service will not be materially decreased during a Subscription Term; (iii) it shall perform the
Subscription Services with reasonable skill and care; and (iv) it owns or otherwise has sufficient rights in the Subscription Service
to grant to Customer, and the Authorised Persons the rights to use the Subscription Service granted herein.
7.2
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, KAINOS MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, (INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW.
7.3
Internet Delays. SUBSCRIPTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN
THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. KAINOS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY
FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8
MUTUAL INDEMNIFICATION.
8.1
Indemnification by Kainos. Subject to this Agreement, Kainos shall defend, indemnify and hold Customer harmless against
any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or
proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Subscription Service
as contemplated hereunder infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third
party; provided, that Customer (a) promptly gives written notice of the Claim to Kainos; (b) gives Kainos sole control of the
defence and settlement of the Claim (provided that Kainos may not settle or defend any Claim unless it unconditionally
releases Customer of all liability); and (c) provides to Kainos, at Kainos’ cost, all reasonable assistance. Kainos shall not be
required to indemnify Customer in the event of: (i) modification of the Subscription Service by Customer, its employees, or
Authorised Persons in conflict with Customer’s obligations or as a result of any prohibited activity as set forth herein; (ii) use
of the Subscription Service in a manner inconsistent with the Guides or any other instruction given by Kainos; (iii) use of the
Service in combination with any other product or service for a purpose other than as generally contemplated by the nature
of the Subscription Service; or (iv) use of the Service in a manner not otherwise contemplated by this Agreement. If Customer
is enjoined from using the Subscription Service or Kainos reasonably believes it will be enjoined, Kainos shall have the right,
at its sole option, to obtain for Customer the right to continue use of the Subscription Service or to replace or modify the
Subscription Service so that it is no longer infringing. If neither of those options is reasonably available to Kainos, then use
of the Subscription Service may be terminated at the option of Kainos and Kainos’ sole liability shall be to refund any prepaid
fees for the Subscription Service that were to be provided after the effective date of termination.
8.2
Indemnification by Customer. Subject to this Agreement, Customer shall defend, indemnify and hold Kainos harmless
against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought
against Kainos by a third party alleging (i) a breach by Customer of its obligations under applicable data protection laws and
regulations; or (ii) that the Customer Data, or Customer’s use of the Subscription Service in violation of this Agreement,
infringes the rights of, or has otherwise harmed, a third party; provided, that Kainos (a) promptly gives written notice of the
Claim to Customer; (b) gives Customer sole control of the defence and settlement of the Claim (provided that Customer may
not settle or defend any Claim unless it unconditionally releases Kainos of all liability); and (c) provides to Customer, at
Customer's cost, all reasonable assistance.
9
LIMITATION OF LIABILITY
9.1
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT WITH RESPECT TO EITHER PARTY’S
INDEMNIFICATION OBLIGATIONS AND/OR CUSTOMER’S PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY
AND/OR ITS LICENSORS AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT,
TORT, BREACH OF WARRANTY OR UNDER AN INDEMNITY CLAIM, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE
AMOUNTS ACTUALLY PAID (BY THE CUSTOMER HEREUNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE
INCIDENT GIVING RISE TO THE LIABILITY (OR, FOR A CLAIM ARISING BEFORE THE FIRST ANNIVERSARY OF THE EFFECTIVE
DATE, THE AMOUNT PAID FOR THE FIRST TWELVE MONTH PERIOD).
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9.2
Exclusion of Consequential and Related Damages. SUBJECT TO SECTION 9.3, TO THE MAXIMUM EXTENT PERMITTED BY
LAW, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF
CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY
CONNECTED WITH THIS SUBSCRIPTION SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE
SUBSCRIPTION SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SUBSCRIPTION SERVICE, ANY
INTERRUPTION, INACCURACY, ERROR OR OMISSION, 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.
9.3
Liability not excluded. Nothing in this Agreement limits or excludes liability of either party for death or personal injury
resulting from negligence.
10
TERM & TERMINATION
10.1
Term of Agreement. This Agreement commences on the Effective Date and continues for the Subscription Term detailed in
the Order Form, unless terminated earlier in accordance with the terms of this Agreement. Unless the Customer enters into
a renewal agreement, the Customer’s right to use and/or access the Subscription Services shall terminate at the end of the
Subscription Term.
10.2
Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach
to the other party 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 or any event analogous to the foregoing occurs in relation to that other party in any jurisdiction. Any
breach of the Customer’s payment obligations or unauthorised use by the Customer or the Authorised Persons of Kainos
technology or the Subscription Service will be deemed a material breach of this Agreement. Kainos, in its sole discretion,
may terminate Customer password, account or use of the Subscription Service if Customer or the Authorised Persons commit
a material breach of this Agreement where such material breach is not remedied within 30 days of receipt by the Customer
of the written notice of the breach. Upon any termination for cause by Customer, Kainos shall refund Customer any prepaid
fees covering the remainder of the Subscription Term after the date of termination.
10.3
Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 to 11
inclusive.
11
GENERAL PROVISIONS.
11.1
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.
11.2
Neither Party will for the duration of this Agreement or within (12) twelve months of its termination or expiry solicit, canvass
or entice away, directly or indirectly any developer, manager or senior employee of the other. The parties agree that breach
of this clause 11.2 would involve the other in significant expense and will entitle the other to liquidated damages of an
amount equivalent to the basic annual salary of the employee so solicited or the cost of replacing them, whichever is the
greater and that this represents a genuine pre-estimation of the loss suffered. For the avoidance of doubt, recruitment arising
out of any employee responding to a general recruitment campaign shall not be deemed 'solicitation', or an action giving
rise to a payment of damages under this clause 11.2.
11.3
No Third-Party Beneficiaries. No person who is not a party to this Agreement is intended to benefit by its terms. No person
who is not a Party to this Agreement has any right to enforce any term of this Agreement whether under the Contracts
(Rights of Third Parties) Act 1999 or other statutory provision or law.
11.4
Force Majeure .Neither party shall be liable to the other for any delay or failure to perform arising from a force majeure
event.
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11.5
Notices. All notices under this Agreement 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 second business day after sending by email. Notices to Kainos shall be addressed to the attention of the Company
Secretary at the registered office. Notices to Customer shall be addressed to Customer’s signatory of this Agreement at the
registered office.
11.6
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.
11.7
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.
11.8
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, in
connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets not involving a
direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach
of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of
the parties, their respective successors and permitted assigns.
11.9
Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of
England. The courts of England shall have exclusive jurisdiction to adjudicate any disputes, actions, claims or causes of action
arising out of or in connection with this Agreement or the Subscription Service. Each party hereby consents to the jurisdiction
of such courts.
11.10
Entire Agreement. This Agreement, including all exhibits and addenda to it and all Order Forms, 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 signed by both parties. Notwithstanding any language to the contrary therein, no
terms or conditions stated in a Customer purchase order or in any other Customer 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.
11.11
Variation: No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised
representatives). For the avoidance of doubt, the terms on either party’s purchase orders, invoices or other business forms
will not supplement or alter this Agreement and are not binding on the other party as a variation to this Agreement whether
or not they pre-date or post-date the Agreement unless they are expressly incorporated into a formal written agreement
signed by both parties which specifically states the parties’ intention to vary the Agreement. Nothing in this Agreement will
operate to vary or invalidate any other contracts in existence between the parties which will operate independently of this
Agreement under the terms and conditions agreed.
11.12
Subcontracting: Where Kainos subcontracts any of its obligations under this Agreement, Kainos shall not be relieved of any
of its liabilities or obligations under this Agreement by entering into any subcontract and Kainos accepts liability for the acts
and omissions of any subcontractor or any member of its staff as fully as if they were the acts or omissions of Kainos.
11.13
Further Assurance: Each party shall do and execute, or arrange and procure for the doing and executing of, any act and/or
document reasonably requested of it by the other party to implement and give full effect to the terms of this Agreement.
Version 3.0 (professional services removed)