This Octain Access Agreement will be entered into by Kin and Carta Partnerships LLC (referred to herein as We, Us, K+C) and the Client (referred to herein as “You”, “Prospective Client”, “Business”).
WHERE YOU ARE USING THIS SERVICE ON BEHALF OF A BUSINESS (BUSINESS SHALL ALSO INCLUDE A COMPANY, PARTNERSHIP, PERSON OR CORPORATION) YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER THIS AGREEMENT ON BEHALF OF YOUR BUSINESS. Furthermore, You will notify us immediately if the authorisation to enter into subsequent ancillary agreements that may be required to be entered into from time to time has been revoked.
BY CLICKING ON THE "ACCEPT" BUTTON (IF SUBSCRIBING ONLINE), OR ACCESSING (LOGGING IN) A USER ACCOUNT, SIGNING AN ORDER FORM, OR BY RETURNING YOUR ACCEPTANCE (IF SUBSCRIBING VIA ANY OTHER MEANS INCLUDING BUT NOT LIMITED TO UTILIZATION OF THE SERVICES) AND/OR BY SIGNING THE ORDER FORM/STATEMENT OF WORK, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST DISCONTINUE THIS PROCESS NOW WHICH INCLUDES WITHOUT LIMITATION IMMEDIATELY CEASING UTILIZATION OF ANY ASPECT OF THE SERVICES HOWEVER MINOR OR INCIDENTAL.
(A) Octain is a data science enablement tool that cleanses data (i.e. removing empty or uniform columns), engineers new variables, and develops weighted ensemble machine learning models and explanations to its users (“Octain”).
(B) We grant access to Octain, and the resulting models, analytical and statistical information, on a subscription basis (the "Services").
(C) You wish to use the Services on this subscription basis as set out in the Order Form.
(D) We have agreed to provide, and you have agreed to take and, to the extent applicable, pay for, the Services for the prescribed period set out in the Order Form subject to the terms and conditions of this Agreement.
(B) Agreed Terms
2.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Additional Content: the Content which is subject to the Content Fees.
Agreement: these Terms and all relevant Order Forms.
Authorized Users: those individuals who are authorized to access the Services in accordance with your Subscription of the Services.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK and United States of America.
Confidential Information: information that is proprietary or confidential and is either clearly labeled as such or identified as Confidential Information in clause 10 or should reasonably be understood to be confidential given the nature of the information and/or the circumstances of disclosure.
Content: any digital assets or other materials that are made available via the Services including but not limited to any Included Content and Additional Content and/or any ancillary documentation provided alongside these Terms.
Additional Content Fees: any fees applicable in addition to the Subscription Fees and payable by you for access to certain Content (including Additional Content) which may be requested during your Subscription.
Client: the person or entity accepting these Terms as set out in the relevant Order Form.
Client Materials: any artworks, assets, branding, iconography that you provide (where required as part of the Services to be provided as part of your Subscription).
Client Data: the data provided by you, or on your behalf, for the purpose of using the Services.
Data Protection Legislation: all legislation in any applicable jurisdiction concerning the protection and/or Processing of Personal Data, direct marketing, the right to privacy, information security, and the obligation to provide data breach notifications, and including all subordinate legislation, regulations, guidance and codes of practice, including without limitation, to the extent applicable, Regulation (EU) 2016/679 of the European Parliament and of the Council (General Data Protection Regulation) on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, the Directive on privacy and electronic communications 2002/58/EC (including any implementing legislation in any member state of the European Union), the UK Data Protection Act 2018, as amended by the Data Protection, Privacy and Electronic Communications (Amendments Etc.) (EU Exit) Regulations 2019, the United Kingdom General Data Protection Regulation, and the Privacy and Electronic Communications Regulations 2003, the California Consumer Privacy Act of 2018, Regulation, each as amended, replaced, or updated from time to time,to the extent applicable.
Documentation: the documents made available to you from time to time which set out a description of the Services and the user instructions for your use of the Services.
Free Trial: a period during which you, and/or Authorized Users, have a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services as set out in the
Subscription Information to enable you to evaluate whether to pay Subscription Fees to receive a Subscription.
Free Trial Start Date: the first day on which you are provided with access to the Services for a Free Trial (as set out in the Order Form),
Included Content: content which is available with no Additional Content Fees.
Initial Subscription Term: the period beginning on the Start Date and ending on 23:59 CT on the day prior to the 12 month anniversary of the Start Date unless termination and/or access is revoked.
Mock Data: is intended to mean anonymised and does not contain any form of confidential information, sensitive or Personal Data (which directly identifies an individual or provides enough information that an individual could be signed out or identified) and does not contain any Prohibited Data in accordance with the terms of the Access Agreement.
Open-Source Software: any software licensed under any form of open-source license meeting the Open Source Initiative's Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Services or the Software, or with which the Services or the Software is compiled or to which it is linked. Open Source libraries in use can be found in Schedule 1.
Order Form: the forms to be completed by you as part of your Subscription to use the Services, which includes key details of the Services, the Subscription Information, the Content you wish to subscribe to (including any Additional Content) and each party's contact details.
Personal Data: any information relating to (i) an identified or identifiable natural person or (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Legislation), where for each of (i) and (ii), such data is Client Data Processed by Us as a processor on behalf of Client to provide the Services. For clarity, Personal Data does not include information that has been sufficiently anonymized or aggregated in accordance with the Data Protection Legislation.
Prohibited Data: including but not limited to Personal Data, medical, patient, protected health information and/or records, special category data as defined in accordance with Data Protection Legislation, banking identification details, credit card, debit card or payment card information subject to the Payment Card Industry Data Security Standards or equivalent standards, Government identification including but not limited to passport information, visas, driving license, social security details and/or any other forms of identification documentations.
Renewal Period: the period described in clause 13.1.
Services: has the meaning set out in Recital B.
Software: our Octain web application and service which we make available (subject to the User Notice) for you (and Authorized Users) to access the Services from a variety of sources, from time to time, including all Updates.
Subscription Start Date: means: i) the date on which you click “accept” in acceptance of the Terms, or ii) the date set out in the Order Form, or iii) the first day following the end of your Free Trial, or iv) such other date specified in the Order Form (whichever is the earliest).
Subscription(s): the subscription purchased by you or provided access to pursuant to clause 9.1 which entitles you and/or Authorized Users (up to the maximum numbers set out in the Order Form) to access, receive and use the Services and the Documentation in accordance with these Terms and the applicable Subscription Information.
Subscription Fees: the subscription fees payable by you for the Subscriptions calculated in accordance with the Subscription Information and Order Form.
Subscription Information: the information set out in, or attached to, the Order Form, and sets out the various levels of Subscription, the number of Authorized Users, initial training to use the Services, the Content that is accessible (including the ability to manage separate ‘Areas’) and the applicable Subscription Fees.
Subscription Term: the Initial Subscription Term together with any Renewal Period.
Terms: the terms and conditions of this Access Agreement
Updates: as applicable, bug fixes, enhancements, upgrades and new releases or versions that are made generally available to Our Clients.
User Notice: any terms that apply to the access by an Authorized User to the Software or Services.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Works: has the meaning set out in clause 2.2.
you, your and yours: you, the Client who wishes to be granted a Subscription.
2.2 Clause, schedule and paragraph headings shall not affect the interpretation of these Terms.
2.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
2.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
2.5 Words in the singular shall include the plural and vice versa.
2.6 A reference to one gender shall include a reference to the other genders.
2.7 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
2.8 A reference to writing or written includes e-mail.
2.9 References to clauses and schedules are to the clauses and schedules of these Terms; references to paragraphs are to paragraphs of the relevant schedule to these Terms.
3. Subscriptions and Your Obligations
3.1 This Agreement shall come into force on the Subscription Start Date and it shall continue thereafter in accordance with these Terms. If you are subscribing for a Free Trial, clauses 3 and 4 shall also apply.
3.2 THE SOFTWARE IS LICENSED, NOT SOLD. Except for the license expressly granted in these Terms, on behalf of us and our licensors and suppliers, we retain all right, title, and interest in and to the Services, Software, the Content, the Documentation and in all related content, materials, copyrights, trade secrets, patents, trademarks (whether registered or unregistered), derivative works, database rights, trade names and any other intellectual and industrial property and proprietary rights, including moral rights, registrations, applications, renewals and extensions of such rights (the "Works"). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereafter developed and any use other than as expressly set forth herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, republication or performance of the Works is strictly prohibited.
3.3 Subject to: i) you paying the Subscription Fees; ii) the restrictions set out in this clause 2; and iii) you observing the Terms, we grant to you a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services and the Documentation during the Subscription Term as per the Subscription Information.
3.4 Only you and your Authorized Users may access and use the Services. We shall provide you (and your Authorized Users) with unique credentials to access the Services. These credentials shall be required for you (and your Authorized Users) to use the Software to access the Services.
3.5 You (and you shall ensure that Authorized Users are aware of and observe the same, where applicable), undertake that:
(a) you are over the age of 18 you shall keep the security token, or any password and log-in information confidential;
(b) you are solely responsible for giving required access credentials of an appropriate level to your Authorized User for use of your account;
(c) you will keep your account, passwords (including but not limited to administrative and Authorized User passwords), billing information, technical data and files accurate, complete, secure and current;
(d) you shall notify us immediately if you become aware of, or suspect, that any unauthorized third party has knowledge of, or access via, security token or any password and log-in information provided to you;
(e) you shall make all Authorized Users aware of these Terms and undertake to comply with them (and you shall remain responsible at all times for the actions or omissions of Authorized Users and for any breach by an Authorized User of these Terms);
(f) you shall comply with all computing security procedures that may be deemed reasonably necessary as directed by us from time to time;
(g) you shall comply with all applicable laws and regulations with respect to your activities under these Terms;
(h) you shall be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to data centers, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet;
(i) you are the owner of all intellectual property rights in the Client Data and you have the right to license the Client Data to us for the purpose of us providing the Services to you;
(j) the processing of Client Data under this Agreement will not infringe the intellectual property rights of any third party;
(k) the Client Data contains no Prohibited Data, including but not limited to Personal Data.
(l) you shall provide us with:
(i) all necessary co-operation in relation to this Agreement as may be reasonably requested by us from time to time; and
(ii) all necessary access to such information as may be required by us in order to provide the Services, including but not limited to Client Data, Client Materials, security access information and configuration services;
(m) you will install the latest version of the Software to access and use the Services and you will establish an internet connection and electrical supply for the use of the Services;
(n) you shall carry out all responsibilities required from you as set out in this Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the parties, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
(o) you shall obtain and shall maintain all necessary licenses, consents, and permissions necessary for, your contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(p) you are solely responsible for any data that you or your Authorized Users input into the Software (regardless of the method of input) and, where you input data including Client Data into the Software via an API (as opposed to a manual data upload), you are solely responsible for maintaining that API; and
(q) you shall maintain a reasonable security program in accordance with industry standards that is designed to protect the security of, and prevent unauthorized access to, Confidential Information and Client Data and shall have sole responsibility for assessing the security of the Software and Services and ensuring that you are comfortable with the level of security in place.
3.6 During the course of your use of the Services, you shall not, and you shall ensure that your Authorized Users shall not, upload, store, distribute or transmit any Viruses, or any other content or materials that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes violence;
(e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or
(f) is otherwise illegal or causes damage or injury to any person or property;
(g) any form of Prohibited Data including but not limited to medical, patient, protected health information and/or records, special category data as defined in accordance with Data Protection Legislation, banking identification details, credit card, debit card or payment card information subject to the Payment Card Industry Data Security Standards or equivalent standards, Government identification including but not limited to passport information, visas, driving license, social security details and/or any other forms of identification documentations.
and we reserve the right, without liability to you or prejudice to our other rights, to immediately disable your access to any Services or material where you or any of your Authorized Users breach the provisions of this clause.
3.7 You shall use best endeavors to prevent any unauthorized access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify us on firstname.lastname@example.org
3.8 Subject to 2.5(b), you warrant that any information you give in the Order Form are true and correct to the best of your knowledge. If we become aware of any inconsistencies in the answers given by you, or a breach of these Terms (including the number of Authorized Users exceeding the permitted users as set out in the Subscription Information) we reserve the right to:
(a) adjust the level of Subscription and the Subscription Fee to the number of actual users and invoice you retrospectively for any shortfall in the actual Subscription Fee paid by you and the Subscription Fee due from you, which will be paid by you immediately; or
(b) terminate the Subscription, without prejudice to any other right that we may have, including for any claim for damages.
3.9 You shall provide such information to us as we may reasonably request and that we consider reasonably necessary for the purpose of providing the Services to you.
3.10 The rights provided under this clause 2 are personal to you only and are not granted to any subsidiary or holding company of you.
3.11 Should we make Software available for you to access via the Services, your use of the Software shall be at all times subject to the User Notice which you hereby accept, and each Authorized User is required to accept and adhere to.
3.12 We do not warrant that any of the Software will be compatible with other third party software nor do we warrant that operation of the Services and the Software will not damage or disrupt other software or hardware. Any issues related to the Software, including any system requirements, are covered and limited by these Terms.
3.13 You shall at all times remain solely responsible for the information and/or advice and/or guidance provided to you or a third party as a result of using the Services.
3.14 Any Open-Source Software used in the Software as set out in Schedule 1 (list may be updated from time to time) may be used according to the terms and conditions of the specific license under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to clauses 5.6 and 12. Such terms and conditions shall govern such use to the extent that they expressly supersede this Agreement.
3.15 Nothing in this Agreement grants to you any exclusivity in relation to the Services and no exclusivity shall be implied or otherwise construed regarding the supply of the Services to you.
4. Free Trial – Clauses 3 and 4 shall apply to you if you are subscribing for a Free Trial.
4.1 Free Trials (as set out in the Subscription Information) are made available at our sole discretion and are not in any case available to previous Subscription holders or those who have previously received a trial of the Services.
4.2 Your Free Trial period will commence on the Free Trial Start Date and shall terminate on the end date of the predetermined period of the Free Trial set out in the Subscription Information or immediately upon notice from us in our sole discretion.
4.3 Use of Octain (including for an Evaluation) involves users uploading data and information onto Octain. Prospective Clients may only use “Mock Data'' for the purpose of an Evaluation and must not involve Prohibited Data.
4.4 Users will have the sole responsibility and entire risk for the Mock Data and the information uploaded (including its accuracy and completeness), the suitability of results obtained from the use of Octain, the Services and the Documentation and for any decisions made or conclusions drawn or actions taken based on the information contained in or generated from such use of Octain, the Services and the Documentation. It is prohibited for users of Octain to provide or include any Prohibited Data (as defined in our Access Agreement) in the data and information to be uploaded onto the Octain platform at any time (including after a Free Trial and a full Subscription is entered into).
4.5 Notwithstanding that only Mock Data may be used for an Evaluation, if information is unintendedly shared by a Prospective Client for K+C to upload as part of a demonstration of Octain, K+C takes no responsibility for any loss, destruction or modification of such information. K+C gives no warranty as to the security of such information. The Prospective Client is responsible for providing instructions for any reasonable deletion requests to the extent reasonably and technically possible. If no instruction is received all information and Mock Data may be automatically deleted within 90 days.
4.6 K+C reserves the right, without liability to Prospective Client or prejudice to our other rights, to immediately disable your access to any Services or material where Prospective Client or any of your Authorized Users who breach the provisions of this clause. The Authorized Users take full responsibility for any security requirements related to dissemination of Client Data/Mock Data and/or system access compliance considerations.
4.7 Except to the extent such provisions conflict with this clause 3 or clause 4, all other provisions of these Terms shall apply to the Free Trial.
5. After the Free Trial
5.1 At any time during your Free Trial you may provide us with written notice (to the email specified in the Order Form) stating that you do not wish to continue to receive a Subscription at the end of the Free Trial.
5.2 Following completion of your Free Trial and, provided that you have not notified us that you wish to cease your use of the Services at the end of the Free Trial in accordance with clause 4.1, you shall be deemed to have started a Subscription for the number of years set out in the Subscription Information. The date following the last day of the Free Trial shall be deemed the Subscription Start Date for the purpose of billing you the Subscription Fees and calculating the Subscription Term.
6. Our Obligations
6.1 We shall, during the Subscription Term, provide the Services to you in accordance with the Subscription Terms.
6.2 We reserve the right at any time to modify the Services and/or Documentation without notice.
6.3 We undertake that the Services will be performed and made available with reasonable skill and care.
6.4 Notwithstanding the foregoing, we:
(a) do not warrant that your use of the Services will be uninterrupted or error-free, nor that the Content, Documentation and/or the information obtained by you through the Services will meet your requirements;
(b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that we do not control the transfer or transmission of data over communications networks and facilities including the internet and the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities; and
(c) are not responsible under any circumstances for any of the data input into the Software including where such data is from publicly available sources.
6.5 EXCEPT FOR ANY WARRANTIES PROVIDED HEREIN, IF ANY, THE USAGE OF THE SERVICES BY YOU IS ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SOFTWARE OR ANY SERVICES RELATED THERETO WILL BE DELIVERED OR PERFORMED ERROR-FREE OR WITHOUT INTERRUPTION.
7. Changes to Subscription and Additional Content and Services
7.1 During the Subscription Term you may, from time to time, request to receive Additional Content and/or to increase the level of Subscription you receive.
7.2 If you wish to request Additional Content or to increase your Subscription, you shall make such a request in writing and such request shall only take effect upon us providing its written acceptance and confirmation which may result in a new Order form and/or increase in fees.
7.3 We shall confirm acceptance of your request by notifying you via email to the email given upon set up of your account. Where you have requested:
(a) Additional Content, we shall, when we have confirmed we can make the Additional Content available to you, charge you via the billing details given on a new Order Form for the Additional Content Fees and make such Additional Content available to you via the Services on receipt of the Additional Content Fees; and/or
(b) an increase to your Authorized Users we shall set the increase out in an updated Order Form and shall be billed in accordance with clause 9.
7.4 Where we provide initial training in the use of the Services during the Subscription Term, such training shall be delivered in accordance with the Order Form (at the location and on the date set out therein). Any additional training shall be subject to a separate written agreement and payment of further agreed fees.
7.5 Where you identify a requirement for functionality beyond that which is achievable by the Services, the development of such additional functionality shall be subject to a separate written agreement, further applicable terms and payment of further agreed fees.
8. Proprietary Rights
8.1 Certain items of Octain and Services are subject to Open-Source Software. The Open Source Software is not subject to the terms and conditions of this Octain Access Agreement. Instead, each item of Open Source Software is licensed under the terms of the end user license that accompanies such Open Source Software. Nothing in this Octain Access Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, K+C makes such Open Source Software, and modifications to that Open Source Software, available by written request to email: email@example.com. Current open source libraries in use by Octain are indicated in the Schedule 1. Octain is developed using both its proprietary information and Open Source Software.
8.2 You acknowledge and agree that we and/or our licensors own all Intellectual Property Rights in the Services, Software, the Documentation or the Content. Except as expressly stated herein, these Terms do not grant you any rights to, or in, , Software in the Works. Access is granted on a subscription basis only, and you shall have no rights to the Services when your Subscription terminates. You will at all times remain the owner of the Client Materials SAVE THAT you hereby grant a limited use license to us for the purpose of using such Client Materials in the performance of the Services (i.e. the customisation of the Services with your trademark or logo).
8.3 You shall not, and shall ensure that Authorized Users do not, directly or indirectly:
(a) except as may permitted by applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services, Software and/or Documentation and/or Content in any form or media or by any means; or
(ii) attempt to reverse compile, decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form or obtain or attempt to create, derive, or obtain the source code of all or any part of the Services, Software and/or Documentation and/or Content; or
(iii) modify, translate, enhance or otherwise change the Services or prepare derivative works of the Services, including creation and distribution of add-ons or enhancements or incorporation into another product unless expressly agreed between the parties;
(iv) copy, reproduce, republish, upload, post, or transmit the Services or any other materials provided in connection therewith;
(v) remove, obscure, or alter any notice of copyright, trademark or other proprietary right appearing in or on any item included with the Services; or
(vi) circumvent or attempt to circumvent any methods employed by us to control access to the components, features or functions of the Services or to prevent unauthorized use of the Services; or interfere with, impair, or disrupt the integrity or performance of the Services or any other party’s use of the Services; or
(b) access or use all or any part of the Services, Software, Documentation and/or Content in order to build a product or service which competes with the Services; or
(c) use the Services, Software, Documentation and/or Content for any purpose other than internal business purposes, including to provide the Services to third parties; or
(d) license, sublicense, sell, resell, rent, lease, loan, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Software, Documentation and/or Content available to any third party; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, Software, Documentation and/or Content; or
(f) use the Services to violate third party rights or applicable laws or to store or transmit infringing, libellous, unlawful, or tortious material or store material in violation of third party rights or applicable laws.
9. Client Data
9.1 You shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data provided that such Client Data is not Prohibited Data.
9.2 The parties acknowledge that; for the avoidance of doubt, Personal Data is Prohibited Data should not be part of the Client Data nor Mock Data and no Prohibited Data including but limited to Personal Data should be processed for the purposes of providing the Services and/or while evaluating such Services;
9.3 We may, at any time revise this clause 8 by replacing it with any applicable terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this Agreement).}
10. Charges and Payment
10.1 You shall pay the Subscription Fees as set out in the Order Form.
10.2 Prior to the Start Date you will be required to provide an up to date billing method and details where payment is to be made by direct debit, or an address that invoices must be sent to. We will invoice you on or before the date on which payment is due, and payment must be made by the agreed due date (as set out in the Order Form). If no due date is stated, payment must be made within 10 days.
10.3 We shall bill you and you shall pay:
(a) the Subscription Fees payable in respect of the Initial Subscription Term (where Subscription Fees apply in accordance with the Subscription Information) on the Start Date; and
(b) subject to any decision by you not to renew in accordance with clause 13.1, the Subscription Fees payable in respect of each subsequent Renewal Period on each subsequent anniversary of the Start Date.
10.4 If we have not received payment, without prejudice to any of our other rights and remedies:
(a) we may immediately terminate the Agreement and/or Services after we have notified you and this payment remains unpaid within 5 Business Days.
(b) we may, without liability to you, disable your password, account and access to (and Authorized Users’ rights to access and use) all or part of the Services and shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remains unpaid; and
(c) to the extent applicable, interest shall accrue on such due amounts in accordance with the applicable interest rate.
10.5 To the extent applicable, any amounts and fees stated or referred to in these Terms:
(a) shall be payable in USD
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added at the appropriate rate.
10.6 Subject to clause 9.7, we shall be entitled to increase the Subscription Fees at the start of each Renewal Period.
10.7 If we decide to exercise our right under clause 9.6, we shall provide you with at least 1 (one) month’s written notice prior to the end of the Initial Subscription Term or subsequent Renewal Period. Upon receipt of this notice, you may:
(a) reply in writing to us within 14 days stating that you do not wish to continue to receive a Subscription for a further Renewal Period on the proposed new charges. If you exercise this right, you shall continue to receive the Subscription until the end of the Initial Subscription Term or Renewal Period in which your written notice is received; or
(b) not do anything, in which case, if we have not received a written notice stating otherwise in accordance with clause 13.1, we will ensure that the Subscription Term is automatically renewed for a further Renewal Period on the basis of the revised Subscription Fees.
11.1 Each party may be given access to Confidential Information (the "Receiving party") from the other party (the "Disclosing party") in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
11.3 Each party shall: (i) take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these Terms; and (ii) use the same degree of care to protect the disclosing party’s Confidential Information that it uses to protect its own confidential information of like-kind (but not less than reasonable care) including by, except as otherwise authorized by the disclosing party, limiting access to the disclosing party’s Confidential Information to receiving party’s employees, contractors, Affiliates and agents who have a need to know the disclosing party’s Confidential Information for purposes consistent with this Agreement and that are subject to confidentiality obligations to the receiving party containing protections not materially less protective than those contained herein.
11.4 Neither receiving party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party save to the extent such loss, destruction, alteration or disclosure of Confidential Information was caused due to the act or omission by that receiving party.
11.5 You acknowledge that details pertaining to these Terms and mechanisms/workings of the Services constitutes our Confidential Information.
11.6 We acknowledge that Client Data is your Confidential Information.
11.7 This clause 10 shall survive termination of these Terms, however arising.
12.1 You shall defend, indemnify and hold harmless us against claims, actions, proceedings, losses, damages (both indirect and direct), expenses and costs (including without limitation court costs and legal fees) arising out of or in connection with: (a) your use of the Services and/or Software and/or Documentation and/or Content including any claim or demand made by any Authorized User; (b) any infringement by You of any Intellectual Property Rights; (c) any breach by You of your obligations under any Data Protection Legislation; and (d) your breach of any provision of this Agreement.
13. Limitation of Liability
13.1 Except as expressly and specifically provided in this Agreement:
(a) you assume sole responsibility and entire risk as to the suitability of results obtained from the use of the Services and the Documentation, and for any decisions made or conclusions drawn or actions taken based on the information contained in or generated from such use of the Services and the Documentation. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts you provide to us in connection with the Services, or any actions taken by us at your direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;
(c) the Services and the Documentation are provided to you on an "as is" basis. We do not warrant or represent that the Services (or the information, materials or services on which all or part of the Services depend) will be delivered free of any inaccuracies, interruptions, delays, omissions or errors (“Faults”), or that all Faults will be corrected. We shall not be liable for any loss, damage or cost resulting from any such Faults;
(d) You are solely responsible for the preparation, content, accuracy and review of any documents, data, or output prepared or resulting from the use of the Services; and
(e) in no event shall we, our affiliates or our third party providers be liable for any penalties, interest or taxes assessed by any governmental or regulatory authority.
13.2 Nothing in this agreement limits or excludes any liability of either party:
(a) for death or personal injury caused by its negligence;
(b) for fraud or fraudulent misrepresentation; or
(c) which cannot legally be limited or excluded.
13.3 To the maximum extent permitted by applicable laws, subject to clause 12.1 and clause 12.2:
(a) we (including our agents, affiliates, licensors and suppliers) shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise for: (i) any loss of profits, loss of business, depletion of goodwill and/or similar losses; (ii) loss or corruption of data or information, or pure economic loss, or (iii) any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement;
(b) we (including our agents, affiliates, licensors and suppliers) shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise for any claim by you based on the use of any Open-Source Software; and
(c) our (including our agents, affiliates, licensors and suppliers) total aggregate liability in contract, tort (including for negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to 100% of the Subscription Fees paid or payable during the 12 months immediately preceding the date on which the claim arose.
14. Term and Termination
14.1 These Terms shall, unless otherwise terminated as provided in this clause 13, commence on the Start Date and shall continue for the Initial Subscription Term unless expressly extended by the Parties, unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case these Terms shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) either party otherwise terminated in accordance with the provisions of these Terms
(c) during the Free Trial K+C may terminate this Agreement immediately and suspend Services.
(d) during the Free Trial you may terminate this Agreement by serving a termination notice of 5 Business Days to Octain@kinandcarta.com
(e) Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate these Terms without liability to the other if:
(f) that other party commits any material breach or persistently breaches any of its obligations under these Terms which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or
(g) that other party ceases to trade (either in whole, or as to any part or division involved in the performance of this letter) or becomes insolvent or is otherwise unable to pay its debts within the meaning of the insolvency legislation applicable to that party.
14.2 On expiration or termination of these Terms for any reason:
(a) all licenses granted under these Terms shall immediately terminate including any right of Authorized Users to access the Services and you shall return any Documentation provided;
15. Force Majeure
We shall have no liability to you under these Terms if we are prevented from or delayed in performing our obligations under these Terms, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors, provided that you are notified of such an event and its expected duration.
16.1 Any failure to exercise or any delay in exercising a right or remedy provided by this Agreement or at law or in equity shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies. A waiver of any right or remedy under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
16.2 Unless specifically provided otherwise, the rights and remedies provided to either party arising under these Terms are cumulative and (subject as otherwise provided in this Agreement) do not exclude rights and remedies provided by law or in equity.
17.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18. Entire agreement
18.1 This Agreement (consisting of these Terms, all Order Forms, and any documents referred to in it) constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
18.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
19.1 You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under this Agreement.
19.2 We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under this Agreement.
20. No Partnership or Agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
21. Third Party Rights
22. Nothing in this Agreement shall, nor is intended to, confer any benefit on any third party.
23.1 Any notice required to be given under this Agreement shall be in writing and shall be:
(a) delivered by hand, or by prepaid first class post or recorded delivery to either party’s registered address or such other address as given; or
(b) sent by email to the email address provided by you in the Order Form, or in the case of us, to firstname.lastname@example.org or email@example.com
(c) A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received 5 days after mailing . A notice sent by email shall be deemed to have been received at the time of transmission (as shown by an email send receipt).
24. GOVERNING LAW AND DISPUTE RESOLUTION
24.1 Any dispute, controversy, or claim arising out of or in connection with this Agreement (), including any question regarding its existence, validity, applicability, termination or enforceability of this Agreement (each, a "Dispute"), shall be resolved pursuant to the procedures set forth in this Clause 22 of this Agreement. In the event of a Dispute, a party wishing to commence arbitration shall first notify in writing the other party’s Executive of the existence of a Dispute (the “Escalation to Project Representative Notice”). The Executive from each party shall promptly and, in any event within 10 working days after the Escalation Notice schedule a meeting to discuss the Dispute and potential resolutions to such Dispute. Should the Executives not resolve the Dispute within 10 working days following the initial escalation, each party shall schedule a meeting with the relevant executive (whose information is set out below) (the “Escalation to Executive Notice”) to attend a further resolution meeting within 10 working days after the Escalation to Executive Notice.
24.2 In the event the Dispute remains unresolved following good-faith attempts to resolve the Dispute in accordance with the procedure set out above and/or the parties are unable to resolve the Dispute within 45 working days, the parties should consider, however, are not compelled to consider mediation (in accordance with the ICC Mediation Rules) following exhaustion of the steps set out below any Dispute arising out of or in connection with the Agreement shall be finally resolved by arbitration. The arbitration shall be conducted by a sole arbitrator under the Rules of Arbitration of the International Chamber of Commerce, except as expressly modified by the parties in this Agreement. The seat of the arbitration shall be Chicago, Illinois and the language to be used in the arbitral proceedings shall be English.
25. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, any information relied on (e.g. witness statements, expert reports, documents), and the decisions made by the Sole Arbitrator, including any awards and orders, except as required by applicable law or to protect or pursue a legal right and to the extent not already in the public domain. In any enforcement or challenge proceedings relating to the arbitration, the parties agree to take all necessary steps to request that all information relating to the existence and contents of the arbitration be filed under seal or redacted, understanding that the court may decide not to seal the information.
26. The construction, validity, interpretation, enforcement, and performance of this Agreement and the arbitration agreement will be governed by the state laws of Chicago, Illinois without giving effect to its rules governing the conflict of law principles. The arbitration award shall be final and binding on the parties. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER OF SUCH PARTIES UNDER THIS AGREEMENT, TO THE EXTENT IT IS PERMISSIBLE.
27. Amendments to these Terms
27.1 We reserve the right to update these Terms at any time by displaying amended terms when you login to use the Services or by sending you notice via email to the email account notified to us via the Order Form. You will be deemed to have agreed to the amended terms when you next use the Services following any amendment except where you give us written notice in accordance with clause 13.1(c).
Appendix: Open Source Libraries in Use