Terms and Conditions
These Terms and Conditions are incorporated in, and part of, a binding legal agreement ( “Agreement") between you (“you”, “your” or “Customer”) and Knexus EMEA Ltd (“we”, “our”, “us” or “Knexus”) that governs your access and use of Knexus Product &/or Services. This Agreement is effective as between the Customer and Knexus from the earliest date on which Customer either returned to Knexus an executed Order Form, or otherwise started to use the Product &/or Services.
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 Product &/or Services.
You may not access the Product if you are our direct competitor, except with our prior written consent. In addition, you may not access the Product for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Knexus reserves the right to amend this Agreement at any time by notifying the Customer as provided in this Agreement, provided that no notice shall be required for non-substantive changes to the Agreement. If Knexus substantively amend this Agreement, Knexus will post the updated Agreement on the website at least seven (7) days notice before the changes take effect, during which period of time Customer may reject the changes by terminating Customer’s account. If the Customer does not agree to any of these terms or any future Agreement, do not use or access (or continue to access) the Product &/or Services.
1.1 The definitions and rules of interpretation in this Section apply in this Agreement.
"Admin User" means an individual who has completed the user registration process, created a user account with Knexus and supplied with a user identification and password. This includes any individual that Knexus creates a user account for on Customer’s behalf and any individual invited by the Customer to become a user.
"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.
“Customer” means any entity that purchases Knexus Products &/or Services, as more particularly detailed in the Order Form.
“Customer Affiliate” means an entity which directly or indirectly controls, is controlled by, or is under common control by or with a Customer.
"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.
"Order Form" means the document for placing orders for the Product &/or Services ("Order(s)"), including addenda thereto, that are entered into between Knexus and Customer 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 Product &/or Services that we agree make available to you.
"Product" means the AI decision making engine and associated infrastructure known as Knexus (that is owned and operated by Knexus EMEA Ltd) and ordered by Customer under this Agreement, as more particularly described in the Order Form.
"Services" means support and maintenance services provided, or to be provided by Knexus to Customer under this Agreement, including System Services, Support Services and Professional Services.
"SLA" means Knexus standard Service Level Agreement for the Services.
"The Parties" means you and us collectively.
"Website" means the website at http://knexusgroup.com; and any other associated Knexusgroup domains.
“We," "us" or "our" means the Knexus Group company described in Section 14 (Who you are contracting with, notices, governing law and jurisdiction).
"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.
1.2 In these Terms and Conditions, unless the context requires otherwise:
1.2.1 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;
1.2.2 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;
1.2.3 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
1.2.4 References to the singular include the plural and in each case vice versa.
1.2.6 If you are agreeing to these Terms and Conditions on behalf of other individual users under your control, you shall procure that such other individuals comply with these Terms and Conditions and you shall be responsible and liable where such other individual users breach these Terms and Conditions.
2.0 Purchased Products &/Or Services
2.1 Provision of Purchased Products &/or Services. Knexus shall make the Purchased Product &/or Services available to Customer pursuant to this Agreement and the relevant Order Forms during a subscription term. Customer agrees that Customer’s 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 Package Usage. Usage limits on Packages are defined on the order form unless otherwise specified. If usage exceeds the allocation defined for the Package within a month period, the additional cost will be calculated and invoiced in accordance with Knexus published prices. A Package will be automatically upgraded during the subscription term if usage exceeds allocation in more than one month. Price increases are prorated for the remainder of the subscription term, at the time the Package is upgraded.
2.3 Package Usage Limitations. Purchased Product may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls Customer is permitted to make against Knexus application programming interface, and, for Services that enable Customer to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the Order Form.
3.0 Use of The Product: Knexus Responsibilities
3.1 Knexus will, subject to these Terms and Conditions (a.) make the Product available to Customer in accordance with the Order Form, (b.) provide our basic support for the Product to Customer and apply upgrades to the Product as Knexus may deem advisable (c.) provide the Product only in accordance with applicable laws and government regulations.
3.2 Knexus will use commercially reasonable efforts to make the Product available as described in “Knexus Service Level Agreement” (SLA).
3.3 Knexus will use commercially reasonable efforts to resolve any Defect in the Product identified by Customer or otherwise brought to Knexus’s attention. Knexus shall not be liable and Customer shall hold Knexus harmless should the Product by unavailable due to (a.) planned downtime planned downtime (of which Knexus shall give at least 8 hours notice via the Product and which Knexus 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 Knexus’ 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.
4.0 Use of The Product: Customers Responsibilities
4.1 Customer shall provide Knexus with (a.) all necessary cooperation in relation to this Agreement, and (b.) all necessary access to such information as may be required in order to set up the Product, including access to product catalogue feed and website sitemap information.
4.2 Customer may access and use the Product during the subscription term as authorized pursuant to Section 2.
4.3 Customer will (a.) be responsible for its Users’ compliance with this Agreement, (b.) be responsible for the accuracy, quality and legality of your Data and Content, and of the means by which you acquired your Data and Content, (c.) use commercially reasonable efforts to prevent unauthorized access to or use of the Product, and notify Knexus promptly of any such unauthorized access or use, (d.) use the Product only in accordance with the usage and access restrictions set forth below and applicable laws and government regulations.
4.4 Customers shall (a.) ensure that any credentials, API keys and password necessary for accessing and using the Product are kept confidential and secure, (b.) shall use commercially reasonable efforts to ensure that no unauthorized person could access the Product using such credentials, (c.) and shall immediately inform Knexus if it has any reason to believe that the confidentiality of such credentials has been compromised.
4.5 Customer shall not (a.) make the Product available to anyone other than authorized Admin Users, (b.) sell, resell, license, sublicense, distribute, rent or lease the Product , (c.) use the Product 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 Product to store or transmit Malicious Code, (e.) interfere with or disrupt the integrity or performance of the Product or third-party data contained therein, (f.) access the Product in order to build competitive software or services, (g.) attempt to gain unauthorized access to the Product or their related systems or networks., or (h.) use the Product in connection with any fraudulent or harmful purpose or activity, or otherwise in a manner that violates any Applicable Law.
4.6 Customer shall provide Knexus with consent (a.) to access analytics captured within the Product and (b.) all necessary access to such information as may be required to undertake performance analysis, including access to Customer’s site performance data, and (c.) to monitor Customer’s use of the Product, all for the sole purpose of helping Customer to improve business performance.
5.1 Ownership. All Intellectual Property Rights in Content will remain, as between the parties, the property of Customer.
5.2 Customer Content. Customer grants to Knexus, solely to the extend necessary to provide the Product hereunder, a non-exclusive license to store, use, reproduce, display and distribute the Content in any existing or future media and digital channels, including but not limited to, any Content, text, images, audio and video that is made available to Knexus. Customer will not submit any Content to the Product that is illegal or unlawful, or that is or has been the subject of any threatened or actual legal proceedings. Customer shall not infringe on any third party’s legal rights, and shall hold Knexus harmless for any damages or proceedings related to any future infringement. Knexus reserves the right to edit or remove any Content that is made available to the Product or stored on Knexus’ servers. Notwithstanding the foregoing,Knexus does not assume any responsibility for monitoring Customer Content made available on the Knexus Product.
5.3 Representation and Warranty. Customer represents and warrants to Knexus that the Content, and their use by Knexus in accordance with the terms of this Agreement, will not (a) breach any Applicable Law, (b) infringe any person’s Intellectual Property Rights or other legal rights, or (c) give rise to any cause of action against Knexus or Customer or any third party.
5.4 Removal of Content. If Knexus received information that Customer Content made available to Knexus may violate application law or third party rights, Knexus may so notify Customer and in such event, Customer will promptly take actions to resolve the potential violation. If Customer does not take required action in accordance with this Section 5.4, Knexus may disable the Product until the potential violation is resolved.
6.0 Personal Data and Customer Data
6.1 Roles of Parties with Respect to Personal Data. With respect to all Personal Data disclosed to Knexus under this Agreement, or collected or stored by the Product in connection with providing the Services to Customer under this Agreement, Customer shall determine the purposes for which and the manner in which any Personal Data are, or are to be, processed, and Knexus’ role is limited to processing such Personal Data on Customer’s behalf.
6.2 Customer’s Representations and Warranties Regarding Personal Data. Customer represents and warrants that (a.) Customer is and will be in compliance with all Applicable Laws relating to privacy and data security, (b.) Customer has obtained and will obtain all necessary consents and made all necessary disclosures, and (c) Customer has and will have the legal right to disclose and otherwise make available all Personal Data that it discloses and makes available to Knexus.
6.3 Knexus’ Representations and Warranties Regarding Personal Data. Knexus warrants that (a.) Knexus will act only in accordance with Customer’s instructions regarding the processing of Personal Data performed on behalf of Customer, (b.) Knexus has in place appropriate security measures against unlawful or unauthorized processing of Personal Data and against loss or corruption of Personal Data, (c.) Knexus will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Personal Data, including encryption of Personal Data in transmission (using SSL or similar technologies), (d.) Knexus shall not modify and disclose your Personal Data except as compelled by law or as expressly permitted in writing by Customer, (e.) Knexus shall not access Personal Data except to provide the Product &/or Services and prevent or address service or technical problems.
6.4 General Data Protection Regulation (GDPR). To the extent that Knexus engages in the processing of any Personal Data within the meaning of, and as governed by, the General Data Protection Regulation, on Customer’s behalf, in the provision of the Product & Services,, the terms of the data processing addendum at Addendum A at the end, which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
7.0 Fees and Payment for Purchased Product &/Or Services
7.1 Fees. Customer shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (a.) fees are based on product & services purchased and not actual usage, (b.) payment obligations are non-cancelable and fees paid are non-refundable, (c.) the Usage Package specified in the Order Form or subsequently upgraded by Customer 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 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.
7.2 Invoicing and Payment. Customer will provide Knexus with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Knexus. If Customer provide credit card information to Knexus, Customer authorize Knexus to such credit card for all Product and Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). 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, Knexus will invoice Customer 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. Customer is responsible for providing complete and accurate billing and contact information to Knexus and notifying Knexus of any changes to such information.
7.3 Overdue Charges. If any charges are not received from Customer by the due date, then at Knexus 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.) Knexus may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 7.2 (Invoicing and Payment).
7.4 Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for Knexus Product &/or Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts Customer have authorized Knexus to charge to Customer’s credit card), Knexus may, without limiting Knexus’ other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Knexus’ Product &/or Services to Customer until such amounts are paid in full. Knexus will give Customer at least 7 days’ prior notice that Customer’s account is overdue, in accordance with Section 14.2 (Notices), before suspending Product & Services to Customer.
7.5 Payment Disputes. Knexus shall not exercise Knexus’ rights under Section 7.3 (Overdue Charges) or 7.4 (Suspension of Service and Acceleration) if Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
7.6 Taxes. Unless otherwise stated, Knexus’ 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"). Customer is responsible for paying all taxes associated with Customer’s purchases hereunder. If Knexus has the legal obligation to pay or collect Taxes for which Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provide Knexus with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Knexus is solely responsible for taxes assessable against it based on Knexus’ income, property and employees.
8.0 Proprietary Rights
8.1 Reservation of Rights in Products & Services. Subject to the limited rights expressly granted hereunder, Knexus reserve all rights, title and interest, including all related Intellectual Property Rights, in and to the Product &/or Services, and Knexus shall own all rights, title and interest, including all Intellectual Property Rights, in and to any improvements to Product, including those relating to any new features, upgrades, modifications, refinements or enhancements developed by or for Knexus in connection with providing the Product to Customer, even if such improvements result from Customer’s request or suggestion. No rights are granted to Customer hereunder other than as expressly set forth herein.
8.2 Customer’s Intellectual Property. As between Knexus and Customer, Customer exclusively owns all rights, title and interest in and to all Content created by Customer, or by Knexus for Customer, during performance of the Services, including content templates, shall be the owned exclusively by Customer.
8.3 Restrictions. Customer shall not (a.) permit any third party to access the Product except as permitted herein or in an Order Form, (b.) create derivative works based on the Product except as authorized herein, (c.) copy, frame or mirror any part or content of the Product , other than copying or framing on Customers own intranets or otherwise for your own internal business purposes, (d.) reverse engineer the Product , or (e.) access the Product s in order to (i.) build a competitive product or service, or (ii.) copy any features, functions or graphics of the Product.
8.4 Customer’s Applications and Code. If Customer, a third party acting on Customer’s behalf, or a user creates applications or program code using the Product , Customer authorize Knexus to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Knexus to provide the Product in accordance with this Agreement. Subject to the above, Knexus acquire no right, title or interest from Customer or Customer’s licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.
8.5 Customer’s Data. Subject to the limited rights granted by Customer hereunder, Knexus acquire no right, title or interest from Customer or Customer’s licensors under this Agreement in or to Customer’s Data, including any intellectual property rights therein.
8.6 Suggestions. Knexus shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Product any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including users, relating to the operation of the Product.
9.1 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. Customer’s confidential information shall include Customer’s Data. Knexus’ confidential information shall include the Product &/or 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 Customer’s Data) shall not include any information that (a.) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b.) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c.) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d.) was independently developed by the Receiving Party.
9.2 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) (a.) not to use any confidential information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b.) 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.
9.3 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.
9.4 Retention and Disposal. Upon the request of the Disclosing Party and in the event of termination or expiration of this Agreement, the Receiving Party agrees to promptly return Confidential Information to the Disclosing Party or destroy or permanently erase the Confidential Information from all forms of recordation to the extent reasonably feasible, and, if requested by the Disclosing Party, confirm in writing that it has done so. Notwithstanding the foregoing, a party may retain copies of Confidential Information to the extent required to comply with Applicable Law. Such Confidential Information, as applicable, will remain subject to the disclosure and use restrictions herein.
9.5 Injunctive Relief. In the event of a breach or threatened or attempted breach of the Receiving Party’s obligations with respect to Confidential Information, the Disclosing Party may have no adequate remedy in money or damages and therefore may immediately seek an injunction against such breach.
10.0 Term and Termination
10.1 Term of Agreement. This Agreement commences on the date Customer accept it and continues until all subscriptions granted in accordance with this Agreement have expired or been terminated.
10.2 Term of Purchased Product. Product purchased by Customer 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, the Product 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 Knexus has given Customer 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 Product 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: (a.) 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 (b.) 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 Customer, Knexus shall refund Customer any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Knexus, Customer 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 Customer of the obligation to pay any fees payable to Knexus for the period prior to the effective date of termination.
10.5 Actions Upon Termination. Upon termination of this Agreement, (a.) Customer shall irrevocably delete all Knexus’ Confidential Information from its computer systems within thirty (30) days of termination, (b.) Knexus shall irrevocably delete all Customer Confidential Information from the System within thirty (30) days of termination, and (c.) all rights granted by Knexus under this Agreement shall cease and Customer shall immediately cease any use of the Product &/or Services.
10.6 Return of Customer’s Data. Upon request by Customer made within 30 days after the effective date of termination of a Product subscription, Knexus will make available to Customer for download a file of Customer’s data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Knexus shall have no obligation to maintain or provide any of Customer’s data and shall thereafter, unless legally prohibited, delete all of Customer’s data in Knexus’ systems or otherwise in Knexus’ possession or under Knexus’ control.
11.0 Representations and Warranties
11.1 Mutual Representations and Warranties. Each party represents that it has the legal power to enter into this Agreement, and that, when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable in accordance with its terms and conditions.
11.2 Customer’ Representation and Warranties. In addition to warranties that Customer has made elsewhere in this Agreement, Customer represents and warrants that it owns all Content or otherwise has the legal right to have them uploaded onto and maintained on the Product, that the Content do not and will not infringe Intellectual Property Rights of any other party, and that the Content do not and will not violate Applicable Law.
11.3 Knexus Representation and Warranties. In addition to warranties that Knexus has made elsewhere in this Agreement, Knexus represents (a.) the Product will perform materially in accordance with the User Guide, (b.) the functionality of the Product will not be materially decreased during a subscription term, and (c.) Knexus will not transmit Malicious Code to Customer, provided it is not a breach of this subpart (d.) if Customer or a user uploads a file containing Malicious Code into the Product and later downloads that file containing Malicious Code, and (e,) For any breach of a warranty above, Customer’s exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment upon Termination).
11.4 Disclaimer of Warranties. 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 merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
12.1 Indemnification by Customer. Customer agree to indemnify & hold Knexus and Knexus’ subsidiaries, affiliates, officers, agents, & employees harmless from any losses, expenses, costs or damages (including reasonable legal fees, expert fees & other costs of litigation) suffered or incurred by Knexus arising directly or indirectly from, as a result of, or in any manner related to any claim, demand, or action based upon content Customer submit, post, transmit, or otherwise make available through Customer’s use of the Product &/or Services,, Customer’s violation of this Agreement, or Customer’s violation of any rights of another.
12.2 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. Customer agrees that any breach of this Agreement may cause Knexus substantial and irreparable damages and, therefore, in the event of any such breach, in addition to other remedies which may be available, Knexus shall have the right to seek specific performance and other injunctive and equitable relief. In the event that Customer use the Product &/or Services for commercial purposes in breach of this Agreement, Customer agree that Knexus shall be entitled to any proceeds that Customer has obtained from such activity, without prejudice to other rights or remedies Knexus may have against Customer.
13.0 Limitation of Liability. Customer expressly understand and agree that Knexus and Knexus’ subsidiaries, affiliates, officers, employees, and agents shall not be liable to Customer 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 Knexus has been advised of the possibility of such damaged) resulting from the use or the inability to use the Product &/or Services. The foregoing limitation shall not apply to Knexus’ 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 Knexus’ negligence.
14.0 Who Are You Contracting With, Notices, Governing Law and Jurisdiction
14.1 Contracting With. Customer are contracting with Knexus EMEA Limited, with offices at 61 Conduit Street, London W1S 2GB and the governing law is that of England and Wales.
14.2 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 (a.) personal delivery, (b.) the second business day after mailing, (c.) the second business day after sending by confirmed facsimile, or (d.) 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 Customer shall be addressed to the relevant billing contact designated by Customer. All other notices to Customer shall be addressed to the relevant Services system administrator designated by Customer.
14.3 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.
14.4 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.
15.1 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.
15.2 Dispute Resolution. This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation including non-contractual disputes or claims, shall be governed by, and construed in accordance with the law of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, the Agreement or its subject matter or formation, including non-contractual disputes or claim.
15.3 Notification of Unauthorized Acts. Customer is obligated to notify Knexus in writing regarding any actual or perceived breach of this Agreement.
15.4 Providing Knexus with all information that is reasonably requested. In the event that Customer notify Knexus in accordance with Clause 15.2 above, Customer shall cooperate fully with Knexus by providing Knexus with all information that is reasonably requested by Knexus from Customer.
15.5 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.
15.6 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
15.7 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
15.8 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.
15.9 Assignment. Neither this Agreement nor any rights, licenses or obligations under it, may be assigned by the Customer. Any attempt by the Customer 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 Knexus’ sole discretion.
Addendum A – Data Processing
This is an addendum to the Agreement between Customer and Knexus. Each party is referred to as a “Party” and together the “Parties”.
1.1 The definitions and rules of interpretation in this Section apply in this Addendum.
"Breach" means a breach of security measures leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed by Knexus on Customer’s behalf and instructions through the Product and Services.
"Business Purposes" means the Product and Services described in this Agreement.
“Data Subject” means an individual who is the subject of Personal Data (as the term “data subject” is defined under GDPR).
“Data Protection Legislation” means all applicable data protection laws including the GDPR (EU) 2016/679 and any applicable national implementing laws, regulations and secondary legislation in England and Wales relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time, including the Privacy and Electronic Communications Directive 2002/58/EC and the Privacy and Electronic Communications Regulations 2003 SI 2003/2426.
"GDPR" means the EU General Data Protection Regulation 2016/679.
"Personal Data" means any information relating to an identified or identifiable person (as the term “personal data” is defined under GDPR).
"Processing, processes and process " means either any activity that involves the use of Personal Data or as the Data Protection Legislation may otherwise define processing, processes or process.
2.0 Personal data types and processing purposes
2.1 Customer and Knexus acknowledge that for the purpose of the Data Protection Legislation, the Customer is the data controller and Knexus is the data processor.
2.2 The Customer retains control of the Personal Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to Knexus.
2.3 This section describes the subject matter, duration, nature and purpose of processing and the type of Personal Data and categories of Data Subject in respect of which Knexus may process to fulfil the business purposes of this Agreement.
Subject matter of processing: the performance of services pursuant to this Agreement
Duration of Processing: the duration of this Agreement
Nature of Processing: providing Product and Services or fulfilling contractual obligations to Customer as described in the this Agreement. Services may include the processing of Personal Data by Knexus and/or its Approved Sub-processors on systems which may contain Personal Data
Business Purposes: the provision of Product and Services by Knexus to Customer as specified in this Agreement
Type of Personal Data: data subjects' IP address but not special categories of personal data. Customer can also instruct Knexus to store additional data and to import and export data to third-party systems
Categories of Data Subject: Customer’s prospects, users, customers and other third parties
Identify the legal basis for processing Personal Data outside the EEA in order to comply with cross-border transfer restrictions: Knexus processes data in the EEA, but if instructed by Customer to transfer or process Personal Data outside the EEA, Knexus will use the legal basis supplied
2.4 Knexus’ obligations. (a.) Knexus will only process the Personal Data to the extent, and in such a manner, as is necessary for the Business Purposes and in accordance with the Customer's written instructions, (b.) Knexus may disclose Personal Data to third parties if required to do so by law. If a law, court, regulator or supervisory authority requires Knexus to process or disclose Personal Data, Knexus shall use reasonable endeavours to inform the Customer of the legal or regulatory requirement, unless the law prohibits such notice, (c.) Knexus will reasonably assist the Customer with meeting the Customer's compliance obligations under the Data Protection Legislation, taking into account the nature of the Knexus’ processing and the information available to Knexus, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.
2.5 Security. (a.) Taking into account (i.) the nature, scope, context and purposes of processing, (ii.) the state of the art and costs of implementation, and (iii.) the risk of varying likelihood and severity for the rights and freedoms of individuals, Knexus shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, (b.) Knexus shall implement measures to ensure a level of security appropriate to the risk involved, including as appropriate: (i.) Data minimization, (ii.) anonymization and encryption of personal data, (iii.) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services, (iv.) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident, and (v.) a process for regularly testing, assessing and evaluating the effectiveness of security measures.
2.6 Personal Data Breach. (a.) Knexus shall notify the Customer without undue delay after having become aware of a Personal Data Breach, (b.) Immediately following any unauthorised or unlawful Personal Data processing or Personal Data Breach, the parties will coordinate with each other to investigate the matter. Knexus will reasonably cooperate with the Customer in the Customer's handling of the matter, this may include where appropriate (i.) assisting with any investigation, (ii.) making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by the Customer, and (iii.) taking reasonable and prompt steps to mitigate the effects and to minimise any damage resulting from the Personal Data Breach or unlawful Personal Data processing, (c.) If and to the extent that a Personal Data Breach arises from any act or omission of the Customer or a third party, the Customer will be responsible for, and shall reimburse Knexus for, all reasonable costs and expenses incurred by or on behalf Knexus in connection with the performance of its obligations under clauses 6.7 (b).
2.7 Cross-border transfers of personal data. Knexus shall not transfer or otherwise process Personal Data outside the European Economic Area unless in accordance with the Customer’s instructions or consent.
2.8 Complaints, data subject requests and third party rights. (a.) Knexus must take such technical and organisational measures as may be appropriate, and promptly provide such information to the Customer as the Customer may reasonably require, to enable the Customer to comply with (i.) the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase personal data, object to the processing and automated processing of personal data, and restrict the processing of personal data, and (ii.) information or assessment notices served on the Customer by any supervisory authority under the Data Protection Legislation, (b.) Knexus must notify the Customer immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Personal Data or to either party's compliance with the Data Protection Legislation, (c.) Knexus must promptly notify the Customer if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation, and (d.) Knexus will assist the Customer in responding to any complaint, notice, communication or Data Subject request.
2.9 Data return and destruction. Knexus shall either, at the direction of the Customer, return or destroy all Personal Data on termination of this Agreement, except to the extent Data Protection Legislation requires Knexus to retain it. In that case, Knexus will no longer process Personal Data, except to the extent required by applicable Data Protection Legislation
2.10 Audit. Knexus shall make available to the Customer all information necessary to demonstrate compliance with its obligations under Data Protection Legislation to allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer.