KANNETIC PLATFORM SERVICES TERMS AND AGREEMENT

The legal terms set out below govern your use of(a) Kannetic’s proprietary platform (“Kannetic Platform”); and (b) services to enable Customer’s use of the Kannetic Platform.  

1.      DEFINITIONS

1.1    “Customer Materials” means any customer or third party data or other materials or information provided by Customer to Kannetic under this Agreement.

1.2    “Derivative Data” means any and all data that is derived or collected from Customer Materials or Customer’s use of the Kannetic Technology.

1.3    “Documentation” means Kannetic-provided user documentation, in all forms, relating to the Kannetic Technology (e.g., user manuals, on-line help files).

1.4    “Kannetic Technology” means, generically or together, the Kannetic Platform, Integration Code, and Documentation.

1.5    “User” means any employee, affiliate, or third-party connection of Customer or of a Customer affiliate using Kannetic’s Technology as part of a Customer subscription. 

1.6    “Integration Code” means any common data model code or other software code, base task lists, or templates provided by Kannetic.

1.7     “Reports” means reports generated by Customer from Customer’s use of the Kannetic Platform or written reports or other deliverables developed by Kannetic in the performance of Follow-on Services.

1.8    “Support Services” means the support services described in Section 4.


2.      USE OF THE KANNETIC PLATFORM

3.1    Access Credentials.  Subject to the terms and conditions of this Agreement, Kannetic will: (a) provide to Customer access credentials to log into the Kannetic Platform; and (b) Kannetic will make the Kannetic Platform available to Customer during the term of subscription.  Customer will not provide the access credentials to any third party, and will not, directly or indirectly, permit or allow any unauthorized access to or use of any Kannetic Technology.

3.2    Access to the Kannetic Platform.  Subject to the terms and conditions of this Agreement, Kannetic grants to Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement for Users to access and use the Kannetic Platform solely for Customer’s internal business purposes. 

3.3    Use of the Documentation.  Subject to the terms and conditions of this Agreement, Kannetic grants to Customer a limited, worldwide, non-exclusive, non-transferable, non-sublicensable license during the term of this Agreement to use Documentation solely in connection with Customer’s permitted use of the other Kannetic Technology in accordance with this Agreement.

3.4    Use Restrictions.  Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) modify or reverse engineer any portion of the Kannetic Technology; (b) make rent, lease, or otherwise permit third parties to use any portion of the Kannetic Technology; (c) circumvent or disable any security or other technological features or measures of any portion of the Kannetic Technology; nor (d) use any portion of the Kannetic Technology, Reports or Derivative Data in any manner that adversely affects Kannetic or any of its customers, employees, or their data or security. Kannetic reserves the right to suspend Customer’s access or use of the Kannetic Platform at any time if Kannetic reasonably believes that Customer has failed to comply with this Agreement or is using the Kannetic Technology, Reports, or Derivative Data in a manner that violates applicable law or regulation or could otherwise damage Kannetic’s customers, business, or reputation.

3.5    Protection Against Unauthorized Use.  Customer is responsible for all activity associated with any of its Kannetic Platform accounts.  Customer will use its best efforts to prevent any unauthorized use of the Kannetic Technology and immediately notify Kannetic in writing of any unauthorized use that comes to Customer’s attention.  Customer will cooperate and assist with any actions taken by Kannetic to prevent or terminate unauthorized use of any Kannetic Technology.

3.6    Compliance with Laws.  Customer’s use of the Kannetic Technology, and any result obtained from Customer’s use of the Kannetic Technology (e.g., Reports), must be in compliance with all applicable laws and regulations, and Customer will refrain from any unethical conduct or any other conduct that tends to damage the reputation of Kannetic.

3.7    No Warranties.  Customer will not make or publish any representations, warranties, guarantees, or commitments on behalf of Kannetic concerning any matter whatsoever.

4.      SUPPORT

4.1    Support Services.  For so long as Customer is current with its payment of all applicable fees, Customer will be entitled to receive Kannetic’s standard email support at support@Kannetic.com, (or from such other email address or URL that Kannetic may use from time to time) during Kannetic’s regular business hours.

4.2    Error Reporting.  Customer will document and promptly report all detected errors in the Kannetic Technology to Kannetic with enough detail to permit Kannetic to reproduce the error.  Customer will assist Kannetic with recreating and diagnosing each error.  Customer will provide Kannetic with reasonable access to all necessary personnel to answer questions regarding errors and other problems reported by Customer.

4.3    Error Corrections.  Kannetic will use reasonable efforts to correct performance errors affecting Customer’s use of the Kannetic Technology with a level of effort commensurate with the severity of the error.

4.4    Exclusions.  Unless otherwise expressly agreed to by Kannetic in a separate written agreement, the Support Services do not include: (a) visits to Customer’s site; (b) any work with or relating to any third party equipment or software; or (c) consultation with Users.

5.      FEES AND PAYMENT

5.1    Fees and Payment Terms

(a)    Customer will pay Kannetic subscription fees and any other amounts owed, plus any applicable sales, use, excise, or other taxes, as specified in customer invoices and in accordance with the invoicing schedule.  All amounts payable under this Agreement are non-refundable.  Unless otherwise specified, Customer will pay all amounts due within 60 days of the date of the applicable invoice.

(b)    Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid.  Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Kannetic to collect any amount that is not paid when due.

5.2    Taxes.  Other than federal and state net income taxes imposed on Kannetic by the United States, Customer will bear all taxes, duties, withholding taxes, and other governmental charges.

6.      TERM AND TERMINATION

6.1    Term.  This Agreement will commence upon acceptance and continue until services complete unless this Agreement is terminated earlier in accordance with the terms of this Agreement.

6.2    Notice of Material Breach or Default.  If either party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other party may give the defaulting party written notice of the material breach or default (including a statement of the facts relating to the material breach or default, the provisions of this Agreement that are in material breach or default, and the action required to cure the material breach or default) and of the non-defaulting party’s intention to terminate the Agreement pursuant to Section 6.3 if the material breach or default is not cured within 30 days after the defaulting party’s receipt of that notice (or a later date as may be specified in that notice). Without limiting the preceding sentence, any failure by Customer to make timely payment to Kannetic any amounts owing under this Agreement will constitute a material breach of this Agreement.

6.3    Notice of Termination.  If the defaulting party fails to cure a material breach or default specified in any notice under Section 6.2 within 30 days after receipt of notice (or a later date as may be specified in that notice), then the non-defaulting party may terminate this Agreement by giving the defaulting party written notice of termination.  If Customer fails to timely pay any fees due under this Agreement, Kannetic may, without limitation to any of its other rights or remedies, suspend performance of any Service until it receives all amounts due.

6.4    Post-Termination Obligations.  If this Agreement is terminated for any reason: (a)  Customer will pay to Kannetic any fees or other amounts that have accrued prior to the effective date of the termination; (b) any and all liabilities accrued prior to the effective date of the termination will survive.

7.      INTELLECTUAL PROPERTY

7.1    Ownership; Data.  Kannetic grants to Customer a limited right to access and use the Kannetic Technology under this Agreement.  Customer will not have any rights to the Kannetic Technology, including any customized component of the Kannetic Platform.  Kannetic reserves to itself all rights not expressly granted to Customer under this Agreement. Customer understands and agrees that Kannetic may use and disclose, in an aggregated or other de-identified format, any and all Derivative Data for any purpose, if the Derivative Data would not reasonably be identifiable as originating with or associated with Customer.  Kannetic is the sole owner of all Derivative Data, but Kannetic will use reasonable efforts not to disclose to a third party any Report or Derivative Data in a way that could reasonably be expected to link the Report or Derivative Data to Customer.

7.2    Suggestions. All feedback, suggestions, solutions, improvements, corrections, and other contributions provided by Customer to Kannetic regarding the Kannetic Technology (“Suggestions”) will be owned by Kannetic, and Customer hereby assigns to Kannetic all Suggestions and any intellectual property or other proprietary rights in the Suggestions. Kannetic may use, in any manner and for any purpose, the Suggestions or any know-how, techniques, or procedures acquired or used by Kannetic in the performance of Services under this Agreement, without providing additional consideration to Customer.

8.      WARRANTIES AND DISCLAIMER

8.1   Warranties.  Customer represents and warrants that: (a) this Agreement constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; and (d) it will comply with all applicable laws in connection with this Agreement including, for Customer, all applicable employment laws.

8.2    Customer Warranties.  Customer represents and warrants that: (a) the exercise by Kannetic of the rights granted under this Agreement to Customer Materials as provided by Customer does not, and will not, infringe any intellectual property rights, privacy rights, or other rights of any third party or give rise to any obligation for the payment of any sums to any third party by Kannetic or any of itsaffiliates; (b) the Customer Materials will comply with all reasonable requirements communicated in writing to Customer by Kannetic; and (c) the Customer Materials will not, when used by Kannetic in accordance with this Agreement, subject Kannetic to any liability or causes Kannetic to violate any law, rule, or regulation or guideline.

8.3    Disclaimer.  EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, KANNETIC MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  KANNETIC EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.  KANNETIC DOES NOT WARRANT THAT THE KANNETIC TECHNOLOGY OR ANY RESULTS ARE ERROR-FREE OR THAT OPERATION OF ANY KANNETIC TECHNOLOGY WILL BE SECURE OR UNINTERRUPTED.  KANNETIC EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE CUSTOMER’S USE OF THE KANNETIC TECHNOLOGY OR ANY USE OF ANY REPORTS OR DERIVATIVE DATA.

9.      INDEMNIFICATION

9.1    Defense.  Customer will defend Kannetic from any actual or threatened third party claim arising out of or based upon the Customer Materials or Customer’s use of the Kannetic Technology, Reports, Derivative Data, or Customer's breach of any of the provisions of this Agreement.  Kannetic will:(a) give Customer prompt written notice of the claim; (b) grant Customer full and complete control over the defense and settlement of the claim; (c) assist Customer with the defense and settlement of the claim as Customer may reasonably request and at Customer’s expense; and (d) comply with any settlement or court order made in connection with the claim.

9.2    Indemnification.  Customer will indemnify Kannetic against: (a) all damages, costs, and attorneys’ fees finally awarded against Kannetic in any proceeding under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Kannetic in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and (c) if any proceeding arising under Section 9.1 is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims. This Section 9.2 will apply regardless of any insurance coverage held by Kannetic or any affiliate.

10.    LIMITATIONS OF LIABILITY

10.1   Disclaimer of Indirect Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, KANNETIC WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF KANNETIC IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

10.2   Cap on Liability.  UNDER NO CIRCUMSTANCES WILL KANNETIC’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO KANNETIC UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

10.3   Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY KANNETIC TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.  THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

11.    CONFIDENTIALITY

11.1   Definition.  “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including, without limitation, information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, customers, employees, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Customer Materials and Customer Systems are Customer’s Confidential Information, and the Kannetic Technology, Reports, and Derivative Data are Kannetic’s Confidential Information. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.

11.2   Restricted Use and Nondisclosure.  During and after the term of this Agreement, each party will: (a) use the other party’s Confidential Information solely for the purpose for which it is provided; (b) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 11; and (c) maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.  Notwithstanding the foregoing, Derivative Data in anonymized form may be retained indefinitely by Kannetic and used for ongoing research and development.


11.3   Required Disclosure.  If either party is required by law to disclose the Confidential Information or the terms of this Agreement, the disclosing party must give prompt written notice of such requirement before such disclosure and reasonably assist the non-disclosing party in obtaining an order protecting the Confidential Information from public disclosure.


11.4   Security. Kannetic warrants that it uses reasonable security measures that are designed to protect Customer Materials from accidental loss, disclosure, misuse, and destruction. However, no data security measures can be guaranteed to be completely effective. Consequently, Kannetic does not warrant the security of any Customer Materials.

12.    GENERAL

12.1   Relationship.  Kannetic is an independent vendor (and not an agent or representative of Customer) in the performance of this Agreement.  This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; or (c) prohibiting or restricting Kannetic’s performance of any services for any third party or the provision of products to any third party.

12.2   Assignability.  Customer may not assign its right, duties, or obligations under this Agreement without Kannetic’s prior written consent, which shall not be unreasonably withheld.  If consent is given, this Agreement will bind Customer’s successors and assigns.  Any attempt by Customer to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.  Kannetic may assign this Agreement freely without Customer’s consent.

12.3   Subcontractors.  Kannetic may utilize one or more subcontractors or other third parties to perform its duties under this Agreement as long as Kannetic remains responsible for all of its obligations under this Agreement.

12.4   Reference.  Subject to Section 1 regarding confidentiality, Customer will: (a) make one or more representatives reasonably available for reference inquiries from potential Kannetic customers, partners, and investors; (b) permit Kannetic to create and publish a case study describing in general terms the nature of Customer’s use of the Kannetic Platform; and (c) permit Kannetic to issue and publish a press release containing a quotation from a representative of Customer announcing that Customer has subscribed to use the Kannetic Platform and the general context of the intended use. In addition, Customer hereby consents to Kannetic’s display of Customer’s logo on Kannetic’s web site where Kannetic displays the names and logos of its customers.

12.5   Notices.  Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, and with the appropriate postage affixed. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

12.6   Force Majeure.  Kannetic will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Kannetic’s reasonable control, so long as Kannetic uses all commercially reasonable efforts to avoid or remove such causes of non-performance.

12.7   Governing Law.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A.  Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco, California in connection with any action arising out of or in connection with this Agreement.

12.8   Arbitration. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in San Francisco, California under the Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules, provided that the arbitrator must have significant relevant industry experience and be mutually acceptable to the parties. All other disputes (excluding the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm) will be resolved by a court specified in Section 12.7. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party will be entitled to receive from the other party its attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.

12.9   Waiver.  The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.  The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

12.10  Severability.  If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.  If any material limitation or restriction on the use of the Kannetic Technology under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Kannetic Technology will immediately terminate.

12.11   Commencing Legal Action.  Customer’s action for breach of this Agreement or any other action otherwise arising out of this Agreement must be commenced within one year from the date the right, claim, demand, or cause of action first occurred.

12.12  Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement.  Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.

2.13   Entire Agreement. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed.  No employee, agent, or other representative of Kannetic has any authority to bind Kannetic with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement.  No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Kannetic will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Kannetic specifically agrees to such provision in writing and signed by an authorized agent of Kannetic.