IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT
CAREFULLY BEFORE YOU USE OR ELECTRONICALLY ACCESS THIS PROPRIETARY SOFTWARE PRODUCT.
BY PROCEEDING YOU OR THE ENTITY YOU REPRESENT (“SUBSCRIBER”) INCLUDING ANY
PERSON ACCESSING OR GAINING ACCESS TO THE SOFTWARE THROUGH THE SUBSCRIBER) ARE AGREEING
TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”)
BETWEEN THE SUBSCRIBER AND KANIX INFOTECH PRIVATE LIMITED, ITS AFFILIATES (“KANIX”).
THIS AGREEMENT SHALL BECOME EFFECTIVE AND BINDING ON THE PARTIES AS OF SUCH DATE
ON WHICH THE SUBSCRIBER SELECTS THE “I ACCEPT” BUTTON, ACCESSES OR, OTHERWISE USES
THE SOFTWARE AND DOCUMENTATION. IN THE EVENT THE SUBSCRIBER IS NOT AGREEABLE TO
ANY TERMS AND CONDITIONS OF THIS AGREEMENT, THE SUBSCRIBER IS NOT ENTITLED AND/
OR AUTHORISED TO ACCESS OR, OTHERWISE USE THE SOFTWARE OR DOCUMENTATION. EACH OF
KANIX AND THE SUBSCRIBER ARE HEREINAFTER INDIVIDUALLY REFERRED TO AS ‘PARTY’ AND
JOINTLY AS ‘PARTIES’.
BACKGROUND:
- Kanix is, inter alia, engaged in the processing and tabulation of all types of data,
and has introduced an ERP software product named ‘Highrise’, which is available
for access at the Website (term defined hereunder), which is useful for the automation
of the overall day-to-day management functions in construction industry.
- Kanix intends to provide the Services (term defined hereunder), not only for the
use of persons who are in the construction business, but also for the use of their
employees, suppliers, contractors, clients etc. The Subscriber has expressed its
intention to avail the Services.
- The Software is made available on a subscription basis which means that Subscriber’s
right to use the Software is valid during the subscription period, unless the Subscriber
and Kanix agree in writing to a different subscription period. The continuation
of the use subsequent to the Subscriber subscription period is conditioned upon
renewal of the subscription.
- The license granted by Kanix hereunder is conditioned on the Subscriber’s continuous
compliance with all license limitations and restrictions described in this Agreement.
If the Subscriber violates any of these limitations or restrictions, the license
granted hereunder will automatically and with immediate effect be deemed to have
terminated. Any usage of the Software outside the scope of this Agreement constitutes
an infringement of Kanix’s intellectual property rights as well as a material breach
of this Agreement. No access is granted under the terms of this Agreement if Subscriber
has not lawfully acquired the access or right to use the Software.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
in this Agreement, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereby agree as follows to the terms
and conditions of this Agreement.
- Definitions and Interpretation
- Definitions
The following capitalized terms, wherever used in this Agreement shall have the
meanings given hereunder:
“Account” shall mean the account created for the Subscriber to access the
Services on the Website.
“Acceptable Use Policy” shall mean the Kanix Acceptable Use Policy attached
as Schedule hereto.
“Administrator Account” shall mean an account created for a User designated
by the Subscriber to administer the Account on the Subscriber’s behalf, which will
be the first Account created.
“Affiliate” shall mean any entity that 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” shall mean this Subscription Agreement in connection with the
Services and includes all recitals, annexure, schedules and exhibits appended hereto,
as may be amended and/or modified from time to time.
“Applicable Laws” shall mean any statute, law, regulation, ordinance, rule,
judgment, order, decree, bye-law, government approval, directive, guideline, requirement
or other governmental restriction or any decision or determination by, or any interpretation,
policy or administration of any of the foregoing, by any government authority having
jurisdiction over the matter in question, whether in effect as on the date of this
Agreement or thereafter.
“Confidential Information” shall mean information disclosed by a party (“Disclosing
Party”) to the other party (“Receiving Party”), whether orally or in writing, that
is designated as confidential or that reasonably should be understood to be confidential
given the nature of the information and the circumstances of disclosure. Confidential
Information does not include any information that (i) was known to the Receiving
Party prior to its disclosure by the Disclosing Party without breach of any obligation
owed to the Disclosing Party; (ii) is or becomes generally known to the public without
breach of any obligation owed to the Disclosing Party, (iii) is received from a
third party without breach of any obligation owed to the Disclosing Party, or (iv)
was independently developed by the Receiving Party without access to the Disclosing
Party’s Confidential Information.
“Content” shall mean images, business related data, including employee and
agent data and User information and data, mobile or web applications, websites,
the display of purchases and communications with others uploaded by the Subscriber
to the Website or User Account or transmitted by the Subscriber using the Services.
“Documentation” shall mean Kanix’s formal user manuals, help materials or
other documentation that describe the Services or its use, accessible through the
Website or otherwise made available by Kanix.
“Effective Date” shall mean the date of execution of this Agreement.
“Device” shall mean a hardware device or product of such specifications as
may be prescribed by Kanix, including handheld devices, computer etc.
“Order Form” shall mean designated ordering document specifying the Services
to be provided under this Agreement, the term of use and the fees paid and entered
into between the Subscriber and Kanix, including through electronic acceptance,
and including any amendment, supplement or extension thereof.
“Force Majeure” shall mean any events not within the reasonable control of
a concerned person and which could not have been reasonably foreseeable, including
without limitation, fire, flood, atmospheric disturbance, lightning, storm, typhoon,
tornado, earthquake, landslide, soil erosion, subsidence, washout or epidemic or
other acts of God, war (whether declared or undeclared), terrorist acts, blockade,
insurrection, rebellion, mutiny, civil commotion, riot, acts of public enemies or
civil disturbance, strike, lockout, or other industrial disturbance, affecting a
person, any non-discriminatory acts of government, or compliance with such acts,
internet, hosting service or server service failure or delay, or denial of service
attack, which directly affects that person’s ability to perform its obligations,
if the non-performing Party without fault is failing to prevent or causing the default
or delay, and the default or delay could not have been prevented or circumvented
by the non-performing Party through the use of alternate sources, workaround plans
or other reasonable precautions.
“Malicious Code” shall mean code, whether in object or source format, scripts,
programs, files, agents or other tools intended to harm, hack to or intervene with
an intended use of a Software or Service, including, viruses, time bombs, malware,
spyware, worms, Trojan horses or other malicious or disruptive code.
“Purchased Services” shall mean Services that the Subscriber purchases under
an Order Form, requiring payment of a fee designated therein, to be used by the
Subscriber or by a designated third party who also accepts the terms of this Agreement.
“Service” or “Services” shall mean the Kanix services, mobile or web
applications or Software offered under this Agreement and ordered or subscribed
by the Subscriber under an Order Form and made available by Kanix online, including
any associated offline components, as may be described in any Documentation from
time to time, but excluding any Content or applications not provided and created
by Kanix.
“Software” shall mean any software, library, utility, tool or other computer
or program code (including any updates thereto) provided, or made available by Kanix
to the Subscriber and related website applications made available by Kanix, whether
installed locally on the Kanix hardware device or otherwise accessed by the Subscriber
through the Internet or other remote means (such as websites, portals and cloud-based
solutions), including any related Documentation.
“Subscription Term” shall mean the term of the Subscriber’s subscription
to purchase the Purchased Services, as designated in the Order Form.
“Territory” shall mean the territory designated in the Order Form.
“Third Party Application(s)” shall mean a web-based or offline software application
or service that is provided by any third party or by the Subscriber and interoperates
with a Service, including any application or tool that is referred to the Subscriber
by Kanix or is hyperlinked through the Website.
“User” shall mean an individual who is authorized by the Subscriber to use
a Service, for whom the Subscriber has purchased a subscription, and to whom the
Subscriber (or, when applicable, Kanix at the Subscriber’s request) have supplied
a user identification and password (for Services utilizing authentication). Users
may include, for example, the Subscriber’s employees, consultants, contractors and
agents, and third parties with which the Subscriber transacts business.
“User Account” shall mean a sub-Account created by the Account Administrator
giving viewing access, content transmission and other rights as may be designated
by Kanix, to Subscriber’s Account.
“Website” shall mean the website Kanix uses to offer and administer the Services,
currently being “www.kanix.com” and any other successor or connected sites.
Unless the context otherwise requires:
- Words of any gender are deemed to include the other gender;
- Words using the singular or plural number also indicate the plural or singular number
respectively;
- The terms “hereof”, “herein”, “hereby”, “hereto” and derivative or similar words
refer to this Agreement;
- The term “Clause” refers to the specified clause of this Agreement;
- Heading and bold typeface are only for convenience and shall be ignored for the
purposes of interpretation;
- Reference to any article, clause, sub-clause, or schedule means an article, clause,
sub-clause of or a schedule to this Agreement;
- Reference to any legislation or law or to any provision thereof shall include references
to any such law as it may, after the date hereof, from time to time, be amended,
supplemented, or re-enacted, and any reference to a statutory provision shall include
any subordinate legislation made from time to time under that provision;
- Any term or expression used but not defined herein shall have the same meaning attributable
to it under Applicable Law; and
- References to the words “include” or “including” shall be construed without limitation.
2.1
After creating the Account and entering into or confirming acceptance of this Agreement,
Kanix will enable the Subscriber to create and access to the Account and the Administrator
Account, which will include an administrative console (“Admin Console”) that will
permit the Subscriber to perform certain administrative functions relating to its
employees, contractors, customers, agents or other end users (each, an “Account
User”) including creating a User Account, designating a Device, removing an Account
User, and otherwise using the Services and suspending or terminating Account access.
Account Users will be required to have a separate User Account linked to the Subscriber’s
Administrator Account and the Subscriber is required to provide each Account User,
who is not the Subscriber’s employee, with a copy of this Agreement and obtain their
consent to be bound by such terms prior to the use of the Services, unless they
have otherwise accepted the Kanix terms of use by clicking through them when setting
up the User Account. The Subscribers understands that a violation of the terms of
this Agreement by an Account User may result in the suspension or termination of
such Account User's individual account and/or the Subscriber’s Account and Service
access. The Subscriber shall be fully responsible for each Account User’s compliance
with this Agreement and agree to indemnify and hold Kanix harmless from and against
any damages or liability resulting from use of the Service by the Subscriber’s Account
Users in violation of the terms of this Agreement. The Subscriber will not make
any representation, warranty or guaranty to any Account User on behalf of Kanix,
or otherwise bind Kanix in any manner. In order to access certain services, the
Subscriber may be required to provide current, accurate identification, contact,
and other information as part of the Subscriber’s registration and/or continued
use of Services.
2.2
The Subscriber may establish its own rules for Account Users' access and use
of the Services. Any such rules shall only affect the relationship between the Subscriber
and the Subscriber’s Account Users and must be at least as restrictive as the terms
of this Agreement. Without limiting the foregoing, the Subscriber is responsible
for determining and obtaining any permission from Account Users necessary to enable
the Subscriber to perform the administrative functions available through the Admin
Console and enforce any such rules. The Subscriber will prevent unauthorized use
of Administrator Account. The Subscriber will immediately notify Kanix of any unauthorized
use of or access to the Service of which the Subscriber becomes aware.
2.3
The Subscriber shall be responsible for (a) administering all Account Users'
access through the Admin Console; (b) maintaining the confidentiality of the password
of each Administrator Account and User Account; (c) maintaining accurate and current
account and contact information for each Administrator Account and User Account;
(d) ensuring that all use of each Account complies with this Agreement and Applicable
Laws; and (e) all activities that occur under the Account. The Subscriber shall
be solely responsible for ensuring that it has designated necessary and appropriate
individuals as Administrators and for removing Account privileges from individuals
who no longer require them. THE SUBSCRIBER ACKNOWLEDGES THAT IF NO ACCOUNT ADMINISTRATOR
IS ABLE OR WILLING TO FULFILL SUCH FUNCTION AND/ OR THE SUBSCRIBER OTHERWISE FAILS
TO MAINTAIN CONTROL OF THE ADMINISTRATOR ACCOUNT(S), THE SUBSCRIBER MAY BE UNABLE
TO ACCESS OR CONTROL THE ACCOUNT OR BENEFIT FROM THE SERIVES AND THE SUBSCRIBER
SHALL BE SOLELY RESPONSIBLE FOR ANY RESULTING LOSSES, COSTS AND EXPENSES.
3 Use of Services:
3.1
Services Subscription:
Unless otherwise agreed by the Parties in the applicable Order Form:
- the Services are purchased as a subscription to be used solely in the Territory
during the Subscription Term and for the number of device subscriptions set forth
in the Order Form;
3.1.2
the Subscriber may use the Services to, among other features, manage the Account
information, business information, Content or other similar data (collectively and
individually “Data”);
3.1.3
unless otherwise provided in the applicable Order Form or Documentation, (a) Services
and access to Content are purchased as subscriptions, (b) subscriptions may be added
during a Subscription Term at the same pricing as the underlying subscription pricing,
prorated for the portion of that subscription term remaining at the time the subscriptions
are added, and (c) any added subscriptions will terminate on the same date as the
underlying subscriptions.
3.1.4
the Services are optimized for use with certain designated Devices and may not perform
or not perform well with other devices. The Parties agree that the Services are
not designed to transmit any personally identifiable information (such as credit
card data, social security and the like).
3.2 Grant of Access and Use Restrictions:
3.2.1
Kanix hereby grants to the Subscriber a limited, temporary, personal, non-exclusive,
revocable, non-transferable right to access and use, solely for the Subscriber’s
benefit, without the right to sublet, to use the Services during the Subscription
Term, as applicable, in accordance with this Agreement. All rights not explicitly
granted herein are reserved to Kanix.
3.2.2
The Subscriber shall not, directly or indirectly (i) use the Services to store or
transmit any infringing, libelous, malicious, or otherwise unlawful or tortious
content, or to store or transmit content in violation of any third-party privacy
rights or in violation of this Agreement; (ii) interfere with or disrupt the integrity
of the Services or any third party data stored therein, (iii) attempt to gain unauthorized
access to the Services or related systems or networks; (iv) use the Services to
develop any competing product or Service, create benchmark data, reverse engineer,
disassemble or decompile the Services or otherwise copy a Service or any part, feature,
function or user interface; (v) share an Account Administrator or Account User’s
password with any third party; or (vi) exceed the device subscriptions set forth
in the Order Form; (vii) permit direct or indirect access to or use of any Service
in a way that circumvents a usage limit hereunder; (viii) make any Service available
to, or use any Service for the benefit of any third party other than the Subscriber
or the Account Users; (ix) remove or alter any of Kanix’s or its licensors’ restrictive
or ownership legends on or in the Software or Website and must reproduce such legends
on all copies explicitly permitted to be made, if any; or (x) store more than 10
GB of Content using the Service. The Services may only be used in the Territory
and the Subscriber must be authorized to conduct business in the Territory the Service
is being used. The Subscriber may download updates to Kanix Services as made available
to the Subscriber by Kanix so long as the Subscriber’s Account is current. Kanix
approved versions of Kanix Software is required for use of the Services. The Service
is not part of any other product or offering, and the purchase of any other product
shall not be sufficient to obtain access to the Service. Kanix may suspend or terminate
the Services, the limited right granted to the Subscriber and any Account Users
for unauthorized use of the Service or the Website, or the Subscriber’s violation
of this Agreement.
3.2.3 Usage Responsibilities:
The Subscriber will (i) be responsible for the legality, accuracy and quality of
the Subscriber’s data and the Content stored or transmit using the Website and Services;
(ii) use the Services only in accordance with the applicable Documentation and Applicable
Laws; (iii) be responsible for all Account Users’ compliance with this Agreement
and the use restrictions herein; (iv) use reasonable efforts to safeguard and prevent
damage to, or loss of, or unauthorized use or access to the Services and notify
Kanix promptly of any suspicion thereof; and (v) if the Subscriber subscribes to
any Third Party Application or product that interfaces with the Website or Service,
the Subscriber will comply with and be responsible for Account Users’ compliance
with the terms of use of such offering and with Applicable Laws and regulations.
The Subscriber will be responsible to support the Account Users regarding issues
that are particular to their access to the Services (such as resetting passwords,
suspending accounts, sharing Customer's notes). The Account Administrator will
be responsible for uploading Content and training Account Users to properly use
the Services and for backing up any Content, prior to uploading for transmission
using the Services. Services and Content are subject to usage limits, including,
for example, the quantities specified in Order Forms and Documentation. Unless otherwise
specified, (a) a quantity in an Order Form refers to Users, and the Service or Content
may not be accessed by more than that number of Users, (b) a User’s password may
not be shared with any other individual, and (c) except as set forth in an Order
Form, a User identification may only be reassigned to a new individual replacing
one who will no longer use the Service or Content. If the Subscriber exceeds a contractual
usage limit, Kanix may work with the Subscriber to seek to reduce the subscriber’s
usage so that it conforms to that limit. If, notwithstanding Kanix’s efforts, the
Subscriber is unable or unwilling to abide by a contractual usage limit, the Subscriber
will execute an Order Form for additional quantities of the applicable Services
or Content promptly upon the Subscriber’s request, and/or pay any invoice for excess
usage in accordance with Section 5.2 (Invoicing and Payment).
3.2.4 End-User Information and Data:
If the Subscriber intends to collect any information or data from its Users and/or
customers, the Subscriber will be the controller of such data and it shall be the
Subscriber’s sole responsibility to comply with all Applicable Laws (including,
but not limited to applicable data protection and privacy laws) with respect to
the collection of such data and information and obtain any necessary permissions
or consents. The Subscriber may upload and store its End-Users’ data if they were
obtained in accordance with Applicable Law, including, but not limited to all applicable
data protection and privacy laws and in accordance with the applicable instructions
on the Website. Kanix may use any collected and stored End-Users electronic mail
address(es) and other data in accordance with Kanix’s Privacy Policy and for Kanix’s
business purposes including providing, maintaining, and improving the Services,
recognizing End-Users in subsequent transactions with the Subscriber and marketing,
advertising and promotional opportunities (e.g., contests, special offers, program
or activities etc.). The Subscriber agrees to obtain any required consents from
End-Users to permit Kanix’s use of such information.
3.2.5 Content Transmission:
As part of the Service, the Subscriber may upload Content to the Website. The Subscriber
agrees that the Subscriber will not upload any Content using the Services or Website
unless the Subscriber has created that Content or it has consent from the owner(s)
to do so. The Subscriber also agrees not to upload or transmission any Malicious
Code. If the Subscriber chooses to upload or deliver Content using the Service,
the Subscriber will do so in accordance with the applicable instructions on the
Website and this Agreement. In the event Kanix receives an abuse complaint that
relates to the Subscriber’s use of the Services, whether such use is by the Subscriber
or End-Users, Kanix will notify the Subscriber and the Subscriber will immediately
address said complaint and follow-up until said complaint has been resolved to Kanix’s
satisfaction. Kanix reserves the right to determine, at its discretion, whether
any Content complies with the Acceptable Use Policy and is satisfactory for use
with the Service and may suspend use of the Services pending any investigation of
a violation of the Acceptable Use Policy and/or remove any Content it deems in violation
thereof.
3.2.6 Sensitive Data:
The Subscriber will not upload to the Service or use it to collect any Sensitive
Data as per the provisions of the Applicable Law.
3.2.7 Kanix’s Use of Data:
Kanix collects, analyzes, formats, organizes and relays information generated in
connection with the Services and may incorporate results into future service offerings,
including by analyzing User Information or the use of a hardware device or otherwise
analyze Content and devices use as it pertains to a general group of users. Kanix
uses information collected from cookies and other technologies to improve its user
experience and the overall quality of its services.
4 Kanix’s Duties:
4.1 Provision of Purchased Services:
Kanix will make the Services available to the Subscriber pursuant to this Agreement
and the applicable Order Form(s) during the Subscription Term. Kanix will provide
standard Services support generally available to other Services customers, directly
to the Administrator, in accordance with the then-current terms and conditions governing
support. Kanix will make commercially reasonable efforts to make technical support
available via email at support@kanix.com, or via telephone from 9.30 am to 6.00
pm Indian Standard Time at 020-41504020, except for: (i) planned downtime; and (ii)
any Services or support unavailability caused by occurrence of Force Majeure event.
The Subscriber must provide Kanix with sufficient information in order for Kanix
to duplicate any error encountered by the Subscriber. Kanix may, at its discretion,
make available to the Subscriber Software updates related to, but not limited to,
security, patch updates, bug fixes, error corrections and the like and the Subscriber
must accept any push notification requiring acceptance prior to installation to
ensure that the Subscriber is using the most recent Service. Kanix shall have no
obligation to provide technical support for issues arising out of: (i) any abuse,
misuse, accident or neglect; (ii) repairs, alterations, and/or modifications to
any Software or Device or combination of the Services with a Third Party Application;
(iii) The Subscriber’s environment including any internet or network access issues;
or (iv) use of the Services outside the scope of the Documentation or in conflict
thereof.
4.2 Subscriber’s Data:
Kanix will maintain reasonable administrative, technical and physical safeguards
for protection of the security, confidentiality and integrity of the Subscriber’s
Content, subject to the terms and conditions set forth herein. Those safeguards
will include measures for preventing access, use, modification or disclosure of
the Content by Kanix’s personnel, except (i) as compelled by court of competent
jurisdiction or by law; (ii) as necessary in order to provide the Services; or (iii)
as the Subscriber permits or instructs Kanix in writing. The Subscriber will, when
the Account is active, be entitled to download the entire data in its Account in
excel format.
5 FEES AND PAYMENT FOR PURCHASED SERVICES
5.1
Fees for Services: The Subscriber agrees to pay the fees specified in the
applicable Order Form (the “Fees”) for the right to use the Purchased Services subject
to the terms hereof. Fees are based upon the Services subscribed to and the number
of hardware devices authorized for use with the Services and not on actual usage.
Purchased Services subscription commitment and the Fees are non-cancelable and non-refundable.
Account access for any Administrator Account and User Accounts will be suspended
upon expiration of the Subscription Term, unless an Order Form is signed by the
Parties and Fee payment arrangements are made by the Subscriber. In the event any
amounts are deposited with Kanix, Kanix is authorized to automatically renew such
accounts unless instructions, in writing, for non-renewal of Purchased Services,
or part thereof, along with reasons are issued to Kanix. Kanix reserves the right
to change its Fees, provided, however that Fees set forth in an Order Form shall
remain in effect until next renewal of subscription of Purchased Services.
5.2
Invoicing and Payment: All payments shall be in India Rupees, unless other
currency is designated in the Order Form. Subscription Fee charges are made in advance
monthly/ quarterly, bi-annually/ annually, unless other billing frequency is explicitly
stated in the Order Form. Invoiced charges are due within net seven (7) days from
the invoice date, unless otherwise stated in the Order Form. Kanix may accept the
following payment methods for the Services: (1) payment by cheque upon prior approval
of Kanix and issuance of an invoice by Kanix; or (2) an alternative payment method
accepted by Kanix such as wire transfer to Kanix designated bank account (each,
an “Accepted Payment Method”). The Subscriber agrees that: (i) it will fulfill
its obligation to pay the Fees by the date on which payment is due; (ii) any payment
information it provides is true and accurate; (iii) it is authorized to use the
Acceptable Payment Method; (iv) Kanix has permission to retain the payment information,
including all submitted debit and credit card information, submitted by the Subscriber
and the Subscriber’s issuing bank or the applicable payment network, if credit card
payment is approved by Kanix; and (v) Kanix is authorized to charge the Subscriber
the Fees for the Service using the Accepted Payment Method and the information the
Subscriber provides that is stored in the Subscriber’s account as of the applicable
date for payment. The Subscriber assures Kanix of payment and Kanix’s rights to
collect payment include any obligation the Subscriber may have to pay any Taxes
or delivery charges described as being applicable to the Service. Unless otherwise
expressly provided in an Order Form, Kanix will issue its invoice on or shortly
after the date on which the Service is purchased and on any periodic basis agreed
in the applicable Order Form. All payments of invoiced amounts must be made in the
currency specified by cheque, wire or other electronic transfer to a bank and account
designated by Kanix in writing. Any invoice that remains unpaid seven (7) days after
the invoice due date is considered delinquent. Any wire transfer fees or other similar
fees incurred on account of the payment method selected by the Subscriber is the
Subscriber’s responsibility and may not be deducted from the amount due Kanix. In
addition, the Subscriber agrees that it will be responsible for any credit card
chargeback fees as well as any reasonable collection costs Kanix incurs as a result
of its failure to pay on a timely basis. If the Subscriber purchases a Service that
renews automatically, such as monthly, quarterly, bi-annually or annually, the Subscriber
agrees that Kanix may process the Subscriber Accepted Payment Method on any renewal
term (based on the applicable billing cycle), on the calendar day corresponding
to the commencement of the Subscriber’s Service subscription, as applicable. In
addition, the Subscriber agrees that Kanix has permission to retain and/or share
with financial institutions and payment processing firms (including any institutions
or firms Kanix retains in the future) information regarding the Subscriber’s purchase
and the submitted payment information in order to process the purchase. If the Purchased
Service subscription began on a day not contained in a subsequent month (e.g., the
Subscriber’s service began on January 30, and there is no February 30), Kanix will
process the Subscriber’s payment on the last day of such month.
5.3
Taxes: The Subscriber is responsible for any taxes, including sales, use,
excise, added value (VAT), withholding and similar taxes, as well as all customs,
duties or governmental impositions, excluding only taxes on Kanix's net income
(collectively, “Taxes”), and the Subscriber will pay Kanix all Fees due hereunder
without any reduction for Taxes. If Kanix is obligated to collect or pay Taxes,
Kanix will invoice the Subscriber for the Taxes unless Subscriber provides Kanix
with a valid tax exemption certificate, VAT number issued by the appropriate taxing
authority and/or other documentation providing evidence that no tax should be charged.
The Subscriber will pay all Fees without any deduction or withholding for or on
account of Tax (a “Tax Deduction”), unless a Tax Deduction is required by Applicable
Law. The Subscriber will promptly notify Kanix prior to the due date of the Tax
Deduction in order to confirm that there is no uncertainty as to the application
of the Tax Deduction and, in any event, the opinion of Kanix shall prevail. If the
Subscriber is required by Applicable Law to make a Tax Deduction, the Subscriber
will apply the reduced rate of withholding, or dispense with withholding, as applicable.
Within seven (7) days must provide Kanix with an official tax receipt or other appropriate
documentation to support such payment. The Subscriber and Kanix will reasonably
collaborate with respect to any audits, disputes or requests for information related
to Taxes, including the provision of all relevant information, documents and reasonable
support and it shall survive the termination of this Agreement.
5.4
Suspension of Service and Acceleration: If any amount is owed by the Subscriber
under this Agreement or an Order Form for its services is seven (7) or more days
overdue, Kanix may, in addition to any other rights or remedies available to Kanix
under this Agreement or under Applicable Law, accelerate the Subscriber’s unpaid
fee obligations under such agreement and all payment obligations thereunder will
become immediately due and payable. In addition, Kanix may suspend the Subscriber’s
Services until such amounts are paid in full. Kanix will provide the Subscriber
with at least a seven (7) business days’ notice that the Account is overdue before
suspending any services. Upon suspension of Services, Kanix shall be obligated to
retain the Subscriber’s account Content for a period of forty five (45) days thereafter
the Content will not be retrievable and accessable to the Subscriber even upon the
payment of Subscription Fees.
5.5
Overdue Charges: If any invoiced amount is not received by Kanix by the due
date, then without limiting Kanix’s rights or remedies, (a) those charges may accrue
late payment charges at the rate of 18% per annum of the outstanding balance per
month, or the maximum rate permitted by law, whichever is lower; and/or (b) Kanix
may condition future subscription renewals and Order Forms on payment terms shorter
than those specified in Section 5.2 (Invoicing and Payment). In addition to the
above, the Subscriber agrees to pay all reasonable costs that Kanix incurs to collect
any unpaid or past due amounts, including reasonable attorneys' fees and other
associated costs.
5.6
Future Functionality: The Subscriber agrees that its purchases are not contingent
on the delivery of any future functionality or features, or dependent on any oral
or written public comments made by Kanix regarding future functionality or features.
6 Confidentiality
By accessing the Services, the Subscriber will have access to certain of its Confidential
Information, including but not limited to methods, techniques, programs, devices
and operations and any other information Kanix designates as its Confidential Information.
The Subscriber’s Confidential Information includes the Content and Data. Both Parties’
Confidential Information includes the terms and conditions of this Agreement and
each Order Form (including the pricing terms therein). The Parties agree that they
will only use Confidential Information as explicitly permitted in this Agreement,
they will not disclose any of Confidential Information of the Disclosing Party to
any third party and will not disclose or use the Confidential Information following
the termination of the Service subscription, unless otherwise explicitly permitted
herein. Each party agrees that it will take reasonable efforts to protect the Disclosing
Party’s Confidential Information from disclosure to third parties, except as explicitly
permitted herein, and apply measures consistent with those applied to the Receiving
Party’s protection of its own confidential information. Upon the Disclosing Party’s
request, at any time, the Receiving Party agrees that it will promptly return or
destroy all of copies of Confidential Information to the Disclosing Party. The Disclosing
Party shall be entitled to injunctive relief in the event of any unauthorized use
or disclosure, whether or not intentional, of its Confidential Information. The
Receiving Party may disclose Confidential Information of the Disclosing Party to
the extent compelled by law to do so, provided that the Receiving Party notifies
the Disclosing Party in advance of the compelled disclosure (to the extent legally
permitted) and reasonable assistance in order to permit the Disclosing Party to
contest such disclosure.
7 Proprietary Rights:
7.1
Kanix reserves a right to suspend or terminate the access privileges of those Subscribers
who infringe the copyrights or other intellectual property rights of Kanix or others.
Kanix retain all ownership and intellectual property rights to the Service and Website,
except for the rights to access and use granted to the Subscriber expressly under
this Agreement. Without limitation, Kanix owns Trademarks, the domains, Software
and all other content made available through the Website, and the copyrights in
and to the Website, and the technology used in providing the Service. The Subscriber
will not acquire any right, title or interest therein under this Agreement or otherwise
to any intellectual property owned by Kanix. The Subscriber agrees not to modify,
disassemble, decompile or reverse translate or create derivative works from the
Software or otherwise attempt to derive the source code, or let any third party
do so. No right or license is granted or implied under any of Kanix’s, or its licensors’,
patents, copyrights, trademarks, trade names, service marks or other intellectual
property rights beyond the rights and restrictions explicitly set forth in this
Agreement.
7.2
Kanix owns all Kanix trademarks including Kanix, Highrise etc, (collectively, “Kanix
Trademarks”). The Kanix Trademarks and other marks, graphics, logos, icons and service
names related to the Service are registered and unregistered trademarks or trade
dress of Kanix. They may not be used without Kanix’s express prior written permission.
Other than the Kanix Trademarks, all other trademarks appearing on this Website
or as part of the Service (“Third Party Marks”) are trademarks of their respective
owners. The Subscriber may not use Third Party Marks without the written permission
of such third party.
7.3
Kanix claims no ownership over any Content submitted, posted or displayed by the
Subscriber on or through the Services. The Subscriber or a third party licensor,
as appropriate, retain all patent, trademark and copyright to any Content the Subscriber
submits, posts or displays on or through the Services and the Subscriber is responsible
for protecting those rights, as appropriate. The Subscriber hereby grants Kanix
a worldwide, royalty-free, perpetual, right and license to use and incorporate into
the Service any comments, suggestions, recommendations, feedback or other information
submitted by the Subscriber or the End User.
8 Indemnification:
8.1
Kanix’s Indemnification Obligations:
Kanix will defend the Subscriber against any claim, demand, suit or proceeding made
or brought against Subscriber by a third party alleging that the use of a Purchased
Service in accordance with this Agreement infringes or misappropriates such third
party’s intellectual property rights (a “Claim Against Subscriber”), and will indemnify
Subscriber from any damages, attorney fees and costs finally awarded against Subscriber
as a result of, or for amounts paid by Subscriber under a court-approved settlement
of, a Claim Against Subscriber, provided Subscriber (a) promptly gives Kanix written
notice of the Claim Against Subscriber, (b) give Kanix sole control of the defense
and settlement of the Claim Against Subscriber (except that Kanix may not settle
any Claim Against Subscriber unless it unconditionally releases Subscriber of all
liability), and (c) give Kanix all reasonable assistance, at its expense. If Kanix
receives information about an infringement or misappropriation claim related to
a Service, Kanix may in its discretion and at no cost to Subscriber (i) modify the
Service so that it no longer infringes or misappropriates, (ii) obtain access for
Subscriber’s continued use of that Service in accordance with this Agreement, or
(iii) terminate Subscriber’s subscriptions for that Service upon three (3) days’
written notice and refund Subscriber any prepaid fees covering the remainder of
the term of the terminated subscriptions. The above defense and indemnification
obligations do not apply to the extent a Claim Against Subscriber arises from a
third party product, service or application, the combination of such third party
offering with its Services or Subscriber’s breach of this Agreement.
8.2
Subscriber’s Indemnification Obligations: The Subscriber agrees to protect
and fully indemnify Kanix, its affiliates and any third-party service provider (and
all of its or their respective employees, directors, agents, affiliates and representatives)
from any and all third party claims, liability, damages, expenses and costs (including
reasonable attorney’s fees) caused by or arising from Subscriber’s use of the Service,
including uploading Content, the Subscriber’s (or Subscriber’s Account Users) breach
or other violation of the terms of this Agreement, including any representations,
warranties and covenants herein, or the Subscriber’s infringement, or infringement
by any other user of the Account, of any intellectual property or other right of
anyone, provided Kanix (i) promptly gives the Subscriber written notice of the claim
against Kanix, (ii) give the Subscriber sole control of the defense and settlement
of such claim (except that Subscriber may not settle any such claim without its
consent unless it unconditionally releases Kanix and its Affiliates of all liability
and does not cause any reputational damage to Kanix or such Affiliates), and (iii)
give Subscriber all reasonable assistance, at Subscriber’s expense.
8.3
Exclusive Remedy: This Section 8 states the indemnifying party’s sole liability
to, and the indemnified party’s exclusive remedy against, the other party for any
type of claim subject to indemnification obligations.
9 Representations and Disclaimers:
9.1
Each party represents that it has validly entered into this Agreement and has the
legal power to do so.
9.2
THE SUBSCRIBER UNDERSTANDS THAT THE SUBSCRIBER’S USE OF THE WEBSITE AND SERVICES
(INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO SUBSCRIBER’S COMPUTER
SYSTEM THE SUBCSRIBER EXPERIENCES FROM USING THE WEBSITE AND SERVICE) IS AT THE
SUBSCRIBER’S SOLE RISK. THE SUBSCRIBER UNDERSTANDS THAT THE WEBSITE AND SERVICES
AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THIRD PARTY SITE INFORMATION,
PRODUCTS AND CONTENT INCLUDED IN OR ACCESSIBLE FROM THE WEBSITE OR SERVICE), ARE
PROVIDED ON AN “AS IS” “WHERE-IS” AND “WHERE AVAILABLE” BASIS, AND ARE SUBJECT TO
CHANGE AT ANY TIME WITHOUT NOTICE TO SUBSCRIBER. SUBSCRIBER ACKNOWLEDGES THAT KANIX
MAKES NO WARRANTY THAT THE WEBSITE OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE,
OR ERROR-FREE. THE SUBSCRIBER UNDERSTANDS THAT KANIX DOES NOT WARRANT THAT THE RESULTS
OBTAINED FROM SUBSCRIBER’S USE OF THE WEBSITE OR SERVICES WILL MEET SUBSCRIBER’S
EXPECTATIONS. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THE TERMS
OF THE DISCLAIMER SET FORTH HEREIN. SUBSCRIBER’S USE OF THE WEBSITE IS AT SUBSCRIBER’S
OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KANIX DISCLAIMS ALL
REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE WEBSITE AND
SERVICES AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THIRD PARTY
SITE INFORMATION, PRODUCTS, AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE WEBSITE
AND SERVICES. OTHER THAN AS REQUIRED BY LAW, UNDER NO CIRCUMSTANCE WILL KANIX BE
LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY SUBSCRIBER’S RELIANCE ON INFORMATION OBTAINED
THROUGH THE WEBSITE OR A LINKED SITE, OR SUBSCRIBER’S RELIANCE ON ANY PRODUCT OR
SERVICE OBTAINED FROM THE WEBSITE OR A LINKED SITE.
10 Limitation of Liability:
10.1
NOTWITHSTANDING ANY OTHER PROVISION HEREIN OR IN ANY OTHER COMMUNICATION, KANIX’S
LIABILITY AND OBLIGATIONS WITH RESPECT TO ANY CLAIM(S) RESULTING OR ARISING FROM
OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, STRICT LIABILITY, TORT, INDEMNIFICATION
OR OTHERWISE SHALL IN NO EVENT EXCEED IN THE AGGREGATE THE TOTAL FEES RECEIVED BY
KANIX FOR THE PURCHASED SERVICES DURING THE PRECEDING SIX (6) MONTHS.
10.2
THE SUBSCRIBER AGREES THAT NEITHER KANIX NOR ITS THIRD-PARTY SERVICE PROVIDER NOR
ANY OF THEIR AFFILIATES, OR ACCOUNT PROVIDERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS
OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, REGARDLESS OF LEGAL
THEORY, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE,
EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING THOSE
RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST
OF SUBSTITUTE GOODS AND SERVICES, (iii) ANY PRODUCTS, DATA, INFORMATION OR SERVICES
PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH
OR FROM THE SERVICES; (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF THE SUBSCRIBER’S
TRANSMISSIONS OR DATA OR FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING,
TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR SUBSCRIBER’S ACCOUNT,
OR THE INFORMATION CONTAINED THEREIN; (v) STATEMENTS OR CONDUCT OF ANYONE ON THE
SERVICES; (vi) THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE OR NON-PERFORMANCE
OF ANY THIRD PARTY ACCOUNT PROVIDER SITE; OR (vii) ANY OTHER MATTER RELATING TO
THE SERVICES.
11 Term
11.1
Agreement Term: This Agreement shall be effective upon the Effective Date and shall
remain in effect until all subscriptions to Services hereunder have are renewed
or have been terminated in accordance with the provisions of this Agreement.
11.2
Purchased Service Term: Prior to the end of the Subscription Term, the Subscriber
will be required to renew the Services, at such renewal intervals as specified in
the Order Form, for an additional period to continue use of such Services.. Following
expiration of the Subscription Term this Agreement shall not automatically terminate.
The Subscriber’s access to and right to use the Services shall be suspended at the
end of any Subscription Term unless the Subscriber renews its right to use the Services
upon payment of applicable fees.
12 Termination:
12.1
The Subscriber may terminate this Agreement their Account by issuing sixty (60)
days prior written notice to Kanix, provided that in no circumstances will the Subscriber
be entitled to any refund for Fees paid or any credit against Fees that are due
to Kanix as of the date of such termination or for remainder of any Purchased Services
Subscription Term. Either party may terminate this Agreement in the event the other
party breaches or defaults any material terms of this Agreement, and fails to remedy
such breach or default within thirty (30) days after written notice of such breach
or default from the non-breaching or non-defaulting party. Notwithstanding the foregoing,
(i) either party may terminate this Agreement immediately in the event of a material
breach by the other party of its obligations under Section 6 (Confidentiality);
and (ii) Kanix may terminate this Agreement immediately in the event of a material
breach/ violation by the Subscriber of the Subscriber’s obligations under this Agreement,
Acceptable Use Policy, or Section 7 (Proprietary Rights). If the Subscriber terminates
this Agreement for breach by Kanix, the Subscriber's sole and exclusive remedy
and the entire liability of Kanix for such breach will be a refund of Fees paid
by the Subscriber to Kanix in the six months prior to the date of termination under
this Agreement.
12.2
If Subscriber: (i) becomes insolvent; (ii) voluntarily files or has filed against
it a petition under applicable bankruptcy or insolvency laws which Subscriber fails
to have discharged or terminated within thirty (30) days after filing; (iii) proposes
any dissolution, composition or financial reorganization with creditors or if a
receiver, trustee, custodian or similar agent is appointed or takes possession with
respect to all or substantially all assets or business of the Subscriber; or (iv)
the Subscriber makes a general assignment for the benefit of creditors, Kanix may
immediately terminate this Agreement by giving a termination notice.
12.3
Termination of this Agreement shall, as of the effective date of such termination,
terminate Subscriber’s and its Account Users’ access to the Service and all other
rights granted to Subscriber hereunder; provided, however, that any termination
is without prejudice to the enforcement of any undischarged obligations existing
at the time of termination. The following provisions of this Agreement shall survive
the termination of this Agreement: 6 (Confidentiality), 7 (Proprietary Rights),
8 (Indemnification), 9 (Representations and Disclaimers), 10 (Limitation of Liability),
14 (Notices) and 15 (General).
13 Governing Law and Arbitration:
13.1
This Agreement shall be governed by and construed in accordance with the laws of
India. By signing this Agreement, the parties agree to submit to the exclusive jurisdiction
and venue of the courts of Pune, India.
13.2
Any and all disputes howsoever arising under or in connection with this Agreement
will be finally settled by a sole arbitrator, in accordance to the Arbitration and
Conciliation Act, 1996, seat of the arbitrator will be Pune and the language of
the arbitration will be English.
14
Manner of Giving Notice: Except as otherwise specified in this Agreement,
all notices related to this Agreement will be in writing and will be effective upon
(a) personal delivery, (b) the second business day after mailing, or (c), except
for notices of termination or an indemnifiable claim (“Legal Notices”), which shall
clearly be identifiable as Legal Notices, the day of sending by email. Billing-related
notices to the Subscriber will be addressed to the relevant billing contact designated
by the Subscriber. All other notices to the Subscriber will be addressed to the
relevant Services system administrator designated by the Subscriber.
15 General
15.1
Entire Agreement: This Agreement along with the Order Forms and other Documents
constitute the entire agreement between the Subscriber and Kanix regarding the Services.
Any term or condition in any order, purchase order, confirmation or other document
furnished by the Subscriber or Kanix which is in any way inconsistent with, or in
addition to, the Order Form and this Agreement is hereby expressly rejected, shall
be null and void, and shall be superseded by this Agreement and the Order Form,
unless signed by both Parties. All correspondence pertaining to a purchase of Products
will be in English. Any waiver of default shall not waive subsequent defaults of
the same or different kind. If for any reason a court of competent jurisdiction
finds any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement will be enforced to the maximum extent permissible
so as to affect the intent of the Parties, and the remainder of the Agreement will
continue in full force and effect. Headings are included for convenience only, and
shall not be considered in interpreting this Agreement. Any Order Forms, agreements
or amendments must be in writing and may be signed in counterparts, including by
electronic signature, each of which shall be considered an original.
15.2
Independent Contractors: The Parties are independent contractors under this
Agreement and nothing herein shall be construed to create a partnership, joint venture
or agency relationship between the Subscriber and Kanix, and neither Party has the
authority to enter into agreements of any kind on behalf of the other.
15.3
Assignment: The Subscriber Party may not assign this Agreement or any of
its rights or delegate any of its obligations under this Agreement without the prior
written consent of Kanix.
15.4
Survival: All terms of this Agreement which by their nature extend beyond
their termination, remain in effect until fulfilled and apply to respective successors
and assigns.
15.5
Third-Party Beneficiaries:There are no third-party beneficiaries under this Agreement.
The Subscriber agrees to comply with the following “Acceptable Use Policy” at all times while using the Service.
The Subscriber will not: