This Agreement ("the Agreement") governs the acquisition and use of our Services. If you register for a Free Trial, this Agreement will also govern that Free Trial. By executing and returning to us an Order Form, or by clicking the check-box during the registration process ("I accept the terms") or otherwise using the Services, you expressly agree to be bound by this Agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this agreement and may not use the services.
You may not access the Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective as between you and us from the earliest date on which you either returned to us an executed Order Form, clicked the check-box during the registration process or otherwise started to use the Services.
We reserve the right to amend this Agreement at any time by notifying you as provided in this Agreement, provided that no notice shall be required for non-substantive changes to the Agreement. If we substantively amend this Agreement, we will post the updated Agreement on the website at least seven (7) days notice before the changes take effect, during which period of time you may reject the changes by terminating your account. If you do not agree to any of these terms or any future Agreement, do not use or access (or continue to access) the Services or website.
1.1 "Content" means all documents, files, electronic media, calendar dates, discussions, tasks, meetings, telephone and web conference details and whiteboards, visual, written or audible data, information or material including, without limitation: any hyperlink, application, graphic, artwork, video, music, text, image, logo, word, sound avatar, document, spreadsheet, text message, form entry, web page, and any other file or data or any similar material, including but not limited to each of the foregoing that is uploaded to, transferred through, publicly posted, processed or entered into the Services.
1.2 "Free Trial" means your limited right to use the Services free from any payment obligation, from the date of your registration to use the Services until 14 (fourteen) days thereafter. If at the end of a Free Trial, you do not wish to purchase the Services from us, please notify us by sending an email to firstname.lastname@example.org. In the event that you do not notify us of your intention to cancel or pay for the Services, we reserve the right to deny you access to your account and the Services and delete any content associated with your account.
1.3 "Intellectual Property Rights" means all right, title, and interest in and to any copyright, database, design, logo, trademark, service mark, patent, invention, trade secret, domain name, confidential and proprietary information, know-how, technology, business name, trade name, trade dress, technical solutions, associated right to sue (past, present, and future), and any other intellectual property rights whether existing at common law, applied for, registered or unregistered and all extensions, renewals, continuations, continuations in part, divisionals, reissues, re-examinations, and revivals thereof and existing anywhere in the world.
1.4 "Order Form" means the document for placing orders for the Service ("Order(s)"), including addenda thereto, that are entered into between you and us from time to time. Order Forms shall be deemed to incorporate all of the Terms & Conditions contained herein, unless expressly amended by way of wording to this effect appended to the Order Form. Fees stated on Order Forms are exclusive of VAT and any other sales taxes. The Order Form will describe all of the Services that we agree make available to you.
1.6 "The Parties" means you and us collectively.
1.7 "Admin User" means an individual who has completed the user registration process and created a user account with Knexus. This includes any individual that we create a user account for on your behalf and any individual invited by you to become a user.
1.8 "Website" means the website at http://staging.knexusgroup.com; and any other associated Knexusgroup domains.
1.9 "We," "us" or "our" means the Knexus Group company described in Section 14 (who you are contracting with, notices, governing law and jurisdiction).
1.10 "You" or "your" means the company or other legal entity for which you are accepting this Agreement and any other party that you have authorized to use the Services or Website on your behalf.
1.11.1 Any reference to a "person" includes any individual, company, corporation, firm partnership, joint venture, association, organization or trust (in each case, whether or not having separate legal personality) and references to any of the same shall include a reference to the others;
1.11.2 References to any legislation, statute or statutory provisions includes a reference to those provisions as amended or re-enacted or as their application is modified by other provisions from time to time and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision;
1.11.3 Any phrase introduced by the words "including", "include", "in particular", "for example" or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and
1.11.4 References to the singular include the plural and in each case vice versa.
2. Purchased Services
2.1 Provision of Purchased Services. We shall make the Purchased Services available to you pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
2.2 Usage Package. Usage Packages are defined on the order form unless otherwise specified. A Usage Package is based on level of storage, bandwidth and content upload. If usage exceeds allocation within a month period, a cost per GB will be calculated and invoiced. A Usage Package will be upgraded during the subcription term if usage exceeds allocation in two consecutive months. Price increases are prorated for the remainder of the subcription term, at the time the Usage Package upgrade is added.
2.3 Admin User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services purchased include a defined number of Admin User subscriptions and may be accessed by no more than the specified number of Admin Users, (ii) additional Admin User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional user subscriptions are added, and (iii) the added Admin User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated users only and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who no longer require ongoing use of the Services.
3. Use of The Services
3.1 Our Responsibilities. We shall: (i) provide our basic support for the Purchased Services to you at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which we shall give at least 8 hours notice via the Purchased Services and which we shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Greenwich Mean Time), or (b) any unavailability caused by circumstances beyond our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
3.2 Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data. We shall not (a) modify your data, (b) disclose your data except as compelled by law or as expressly permitted in writing by you, or (c) access your data except to provide the Services and prevent or address service or technical problems.
3.3 Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of your Data and of the means by which you acquired your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the user guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
3.4 Usage Limitations. Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls you are permitted to make against our application programming interface, and, for Services that enable you to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in your Order Form.
4. Fees and Payment for Purchased Services
4.1 Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, (iii) the Usage Package specified in the Order Form or subsequently upgraded by you cannot be decreased during the relevant subscription term stated on the Order Form and (iv) the number of Admin User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. Subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for Usage Package upgrades or Admin User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the subscription term.
4.2 Invoicing and Payment. You will provide us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to us. If you provide credit card information to us, you authorize us to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, we will invoice you in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
4.3 Overdue Charges. If any charges are not received from you by the due date, then at our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) we may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
4.4 Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts you have authorized us to charge to your credit card), we may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our services to you until such amounts are paid in full. We will give you at least 7 days’ prior notice that your account is overdue, in accordance with Section 14.2 (Notices), before suspending services to you.
4.5 Payment Disputes. We shall not exercise our rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service and Acceleration) if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
4.6 Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, we are solely responsible for taxes assessable against it based on our income, property and employees.
5.1 Indemnification by You. You agree to indemnify & hold us and our subsidiaries, affiliates, officers, agents, & employees harmless from any losses, expenses, costs or damages (inc. reasonable legal fees, expert fees & other costs of litigation) suffered or incurred by us arising directly or indirectly from, as a result of, or in any manner related to any claim, demand, or action based upon content you submit, post, transmit, or otherwise make available through your use of the Services or website, your violation of this Agreement, or your violation of any rights of another.
5.2 Remedies. The provisions of this Agreement are necessary for the protection of the business and goodwill of the Parties and are considered by the Parties to be reasonable for such purpose. You agree that any breach of this Agreement may cause us substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which may be available, we shall have the right to seek specific performance and other injunctive and equitable relief. In the event that you use the Services or website for commercial purposes in breach of this Agreement, you agree that we shall be entitled to any proceeds that you have obtained from such activity, without prejudice to other rights or remedies we may have against you.
6. Proprietary Rights
6.1 Reservation of Rights in Services. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.
6.2 Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3 Your Applications and Code. If you, a third party acting on your behalf, or a user creates applications or program code using the Services, you authorize us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for us to provide the Services in accordance with this Agreement. Subject to the above, we acquire no right, title or interest from you or your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
6.4 Your Data. Subject to the limited rights granted by you hereunder, we acquire no right, title or interest from you or your licensors under this Agreement in or to your Data, including any intellectual property rights therein.
6.5 Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including users, relating to the operation of the Services.
7.1 Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your confidential information shall include your Data; our confidential information shall include the Services; and confidential information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, confidential information (other than your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2 Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any confidential information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to confidential information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
7.3 Compelled Disclosure. The Receiving Party may disclose confidential information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s confidential information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such confidential information.
8. Warranties and Disclaimers
8.1 Our Warranties. We warrant that (i) we have validly entered into this Agreement and have the legal power to do so, (ii) the Services shall perform materially in accordance with the User Guide, (iii) the functionality of the Services will not be materially decreased during a subscription term, and (iv) we will not transmit Malicious Code to you, provided it is not a breach of this subpart (iv) if you or a user uploads a file containing Malicious Code into the Services and later downloads that file containing Malicious Code. For any breach of a warranty above, your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment upon Termination) below.
8.2 Your Warranties. You warrant that you have validly entered into this Agreement and have the legal power to do so.
8.3 Disclaimer. Except as expressly provided herein, neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any warranties of merchant or fitness for a particular puspose, to the maximum extent permitted by applicable law.
9. Limitation of Liability
You expressly understand and agree that we and our subsidiaries, affiliates, offiers, employees, and agents shall not be liable to you for any direct, indirect, incidental, special, punitive, consequential or exemplary damages, including, but not limited to, damages for loss or profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damaged) resulting from the use or the inability to use the services or website. The foregoing limitation shall not apply to our liability for damages arising from a third party claim for gross fraud or personal injury (including death) to the extent such injury is caused in whole or in part by our negligence
10. Term and Termination
10.1 Term of Agreement. This Agreement commences on the date you accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated. If you elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
10.2 Term of Purchased Subscriptions. Subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least 60 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% of the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
10.3 Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Refund or Payment upon Termination. Upon any termination for cause by you, we shall refund you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
10.5 Return of Your Data. Upon request by you made within 30 days after the effective date of termination of a Purchased Services subscription, we will make available to you for download a file of your data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, we shall have no obligation to maintain or provide any of your data and shall thereafter, unless legally prohibited, delete all of your data in our systems or otherwise in our possession or under our control.
11.0 Who Are You Contracting With, Notices, Governing Law and Jurisdiction
11.1 Contracting With. You are contracting with Knexus EMEA Limited, with offices at Lynton House, 7-12 Tavistock Square, London WC1H 9BQ and the governing law is that of England and Wales.
11.2 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant Services system administrator designated by you.
11.3 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
11.4 Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. General Provisions
12.1 Force Majeure. Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance which result from circumstances beyond the reasonable control of that Party. If such circumstances continue for a continuous period of more than 4 weeks, either Party may terminate the Agreement by written notice to the other Party. Any costs arising from such delay shall be borne by the Party incurring the same.
12.2 Notification of Unauthorized Acts. You are obligated to notify us in writing regarding any actual or perceived breach of this Agreement.
12.3 Providing us with all information that is reasonably requested. In the event that you notify us in accordance with Clause 12.2 above, you shall co-operate fully with us by providing us with all information that is reasonably requested by us from you.
12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.5 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.8 Assignment. Neither this Agreement nor any rights, licenses or obligations under it, may be assigned by You. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void. We may assign this Agreement or any rights, licenses or obligations under it in our sole discretion.