This Master Services Agreement ("Agreement" or "MSA") governs your acquisition and use of services made available by KAINOTOMO PH LTD. ("KAINOTOMO", "We", "Us" or "Our"), including on kainotomo.com and any of Our other websites, products and/or services that explicitly indicate the applicability of this Agreement (collectively, "Service(s)"), by all natural persons (humans) and juristic persons whether incorporated or not (companies, organisations, etc.). Collectively, such natural or juristic person, as the case may be, is referred to below as "You" and "Your".
Please read the contents of this document carefully before using any of Our Services.
By undertaking any of the following actions, You demonstrate that You have read, understood and agree to this Agreement:
- By creating an account on or through the Service or a website operated by KAINOTOMO;
- By clicking a box indicating acceptance;
- By executing an Order Form that references this Agreement; and/or
- By signing this Agreement, whether digitally or physically.
In addition, when using certain parts of the Service(s), you will be subject to additional terms and conditions, policies, rules, or guidelines, that may be posted on the relevant part of the Service from time to time. You agree not to use such parts of the Service without reading, understanding, and accepting such additional terms as may be provided. In case of a conflict between this Agreement and the terms posted for a specific part of the Service, the latter shall have precedence with respect to Your use of that part of the Service. In addition to any terms and conditions as provided for above or herein, the following terms and conditions, and policies, as updated from time to time, apply to your interactions on the Service:
- Service Level Agreement: Additional terms and conditions are applicable to KAINOTOMO Software.com support and maintenance under the Service Level Agreement, incorporated herein by reference, and available at: https://kainotomo.com/terms-of-service/service-level-agreement as updated from time to time.
- Trademark Use Policy: Certain trademarks and logos owned by KAINOTOMO may be used by You subject to the terms of the Trademark Use Policy located at https://kainotomo.com/terms-of-service/trademarks-and-copyright, as updated from time to time.
This Agreement is effective between Customer (as defined below) and KAINOTOMO as of the date of Your accepting this Agreement.
1.1. "Additional Support Services" shall have the meaning assigned to it in Section 5.1.3
1.2 "Affiliate(s)" means 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.
1.3 “Agreement” means this Master Services Agreement.
1.4 "Authorized User" means a person that has been authorized by a Customer to use the Service, for example by providing such person an account or login credentials to access or use the Service. If Customer is an individual person, Authorized User includes Customer.
1.5 “KAINOTOMO Software” means a software that is developed or distributed by KAINOTOMO.
1.6 "Bug" means a problem in KAINOTOMO Software that causes KAINOTOMO Software to crash or produce invalid output. Bug does not include (i) intended outcome(s) of using KAINOTOMO Software; (ii) lack of feature(s); and/or feature(s) not matching expectation(s); and (iii) outputs that conform to the Documentation. Whether or not something is a Bug shall be determined by KAINOTOMO in its sole discretion.
1.7 "Commercially Reasonable" means, to act in good faith using prevailing industry practices and making all reasonable efforts considering the facts and circumstances of the matter.
1.8 "Consulting Hours" shall have the meaning assigned to it in Section 2.6.
1.9 "Core KAINOTOMO Software Feature(s)" means those features of KAINOTOMO Software that are provided within KAINOTOMO Software and Core KAINOTOMO Software Modules, as distributed without any modification and without any additional Modules. Core KAINOTOMO Software Feature(s) may include features provided by Core KAINOTOMO Software Modules. The list of Core KAINOTOMO Software Feature(s) can be modified by KAINOTOMO at any time in its sole discretion without prior notification to the Customer.
1.10 "Core KAINOTOMO Software Modules" means Modules that are provided within the standard and unmodified public releases of KAINOTOMO Software, as distributed by KAINOTOMO Software Core Maintainers. Core KAINOTOMO Software Modules may include: (i) accounts, (ii) assets, (iii) buying, (iv) customer relationship management, (v) human resource, (vi) projects, (vii) quality management, (viii) selling, (ix) stock, and (x) support. The list of Core KAINOTOMO Software Modules may be modified by KAINOTOMO at any time in its sole discretion without any prior notification to Customer.
1.11 "Core Support Services" shall have the meaning assigned to it in Section 5.1.1.
1.12 "Customer" shall mean: (i) in case an individual accepts this Agreement on behalf of himself / herself, then such individual; and (ii) in case an individual accepts this Agreement on behalf of a company, organization, or other entity (whether or not it is registered or incorporated), such company, organization or other entity.
1.13 "Customized Features" shall have the meaning assigned to it in Section 126.96.36.199.
1.14 "Dedicated Hosting" shall have the meaning assigned to it in Section 4.3.
1.15 "Documentation" means the information regarding the Service at https://kainotomo.com/documentation as updated from time to time, including user guides; help files; tutorials including written, audio and video; policies; procedures; and other information made available by KAINOTOMO regarding the Service(s).
1.16. "KAINOTOMO Software" means the software called 'KAINOTOMO Software' and its associated components, including Core KAINOTOMO Software Modules, that are publicly distributed or otherwise provided by Frappe and its contributors, under the terms of the 'GNU General Public License, version 3' or such other license as may be specified.
1.17. "KAINOTOMO Software Champion" shall have the meaning assigned to it in Section 3.5.
1.18 "KAINOTOMO Software Core Maintainers" means maintainers of KAINOTOMO Software's official open source repository.
1.19 "kainotomo.com" means the website and service available at https://kainotomo.com/ .
1.20 "KAINOTOMO" shall have the meaning assigned to it above.
1.21. "KAINOTOMO-Hosted" shall have the meaning assigned to it in Section 4.1.
1.22. "Host", "Hosted" and "Hosting" means the storage and/or processing of data or information related to an Instance, including but not limited to databases, accounts, object code, executable files, and all other associated files, data and information, that are necessary for an Instance of KAINOTOMO Software to be used.
1.23 "Instance" means an KAINOTOMO Software installation on a single website, or configuration of KAINOTOMO Software for use with a single website. For clarification, installation or configuration of KAINOTOMO Software for use with multiple websites will be counted as multiple Instances of KAINOTOMO Software.
1.24. "Limited Support Services" shall have the meaning assigned to it in Section 5.1.2.
1.25 "Module" means any component of KAINOTOMO Software that provides a complete and distinct business functionality.
1.26 "MSA" means this Master Services Agreement.
1.27 "Order Form" means an ordering document or online order specifying the Services to be provided hereunder that is entered into between KAINOTOMO, and Customer or any of the Customer's Affiliates, including any addenda and supplements thereto. For the purpose of this Agreement, the term "Order Form" includes, but is not limited to, documents titled "Invoice", "Sales Order Form" or "SOF". By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement and the Order Terms as if it were an original party hereto.
1.28 "Order Terms" means additional terms and conditions specified in: (i) an Order Form; (ii) an annexure, exhibit, or similarly titled document attached to or provided with the Order Form; (iii) an annexure titled Order Form annexed with this Agreement; or (iv) Service Specific Agreement. Order Terms shall be binding upon the parties to the Order Form for the products and services provided by KAINOTOMO under the Order Form.
1.29 "Our" has the meaning assigned to it above.
1.31. "Reporting Security Vulnerabilities" means the document or page described above, as updated from time to time.
1.32. "Self-Hosted" shall have the meaning assigned to it in Section 4.1.
1.33 "Server" means and includes computers, servers, devices, virtual machines, virtual images, or virtual storage, by whatever name called, that are used to host any Instance(s).
1.34 "Service(s)" shall have the meaning assigned to it above.
1.35 "Service Level Agreement" means the document or page described above, as updated from time to time.
1.36 "Service Specific Agreement" means additional terms and conditions applicable for specific Service(s), as specified on the Website or Service.
1.37 "Shared Hosting" shall have the meaning assigned to it in Section 4.3.
1.38 "SSH" shall have the meaning assigned to it in Section 3.6.3.
1.39 "Subscriber" means a User that has an active paid subscription for a Service.
1.40 "Support Services" shall have the meaning assigned to it in Section 5.1.
1.41 "Term" shall have the meaning assigned to it in Section 17.1.
1.42 "Trademark Use Policy" means the document or page described above, as updated from time to time.
1.43 "Trial" means access to Service(s) provided by KAINOTOMO to Customer, for the purpose of evaluation of such Service(s) by Customer, upon such terms as may be specified by KAINOTOMO.
1.44 "Us" shall have the meaning assigned to it above.
1.45 "Users" means Authorized Users and KAINOTOMO Software Champion.
1.46 "We" shall have the meaning assigned to it above.
1.47 "Website" means KAINOTOMO.com or such other website owned and/or operated by KAINOTOMO that refers to this Agreement.
1.48 "Work Hours" means the Work Hours or Support Hours specified in the Service Level Agreement. For specific Services, Work Hours may be specified in the applicable Order Terms.
1.49 "You" and "Your" shall have the meaning assigned to them above.
2. Access and Use of Service
2.1. KAINOTOMO Software. As of the date of last modification to this Agreement, the software named 'KAINOTOMO Software' is publicly distributed or otherwise provided by KAINOTOMO and its contributors, under the terms of the 'GNU General Public License, version 3' or such other license as may be specified within or alongside such software ("applicable licence"). KAINOTOMO and other contributors of KAINOTOMO Software reserve the right to modify the applicable licence at any time. Unless prohibited by the applicable licence, any person may acquire, use, modify, transmit and re-distribute KAINOTOMO Software in accordance with the terms of its applicable licence. Obtaining KAINOTOMO Software does not provide anyone the right to use any of KAINOTOMO's intellectual property rights in a manner that is not explicitly permitted by the applicable licence. Obtaining, modifying, or otherwise performing any activity related to KAINOTOMO Software, by itself, does not constitute an acceptance of this Agreement, does not bind KAINOTOMO to this Agreement, and does not oblige KAINOTOMO to provide any Service under this Agreement. Fees charged under this Agreement, if any, are charged for Services provided under this Agreement. No fee is charged under this Agreement for provision of KAINOTOMO Software software. KAINOTOMO Software is provided as-is with no support, unless this Agreement is accepted, an Order Form is executed, and Customer complies with the terms of this Agreement and applicable Order Terms.
2.2. Usage Limits. KAINOTOMO may, at its sole discretion and without any notification, place reasonable technical or non-technical limitations on the use of Service(s) by Customer, including but not limited to allocation of storage space, bandwidth, computing power, backup space, number of backups, database size or number of entries in a database, or any other limitation mentioned in Documentation, the Service, this Agreement, or Order Terms. KAINOTOMO may, at its sole discretion and without any notification, change such usage limits from time to time. If Your application or usage exceeds allocated resources, you may receive a message indicating "Quota Exceeded" or another reasonable method of indicating that a usage limit has been reached or exceeded. Limits specified explicitly in the Agreement or Order Terms cannot be modified without modifying the Agreement or Order Terms, as the case may be.
2.3. Scope of Services. This Agreement governs Services provided by KAINOTOMO, in accordance with the terms of this Agreement and the applicable Order Terms. Such Services may include implementation and configuration support, personalized trainings, custom development, customization of KAINOTOMO Software or a Module, support for fixing Bugs, Hosting, and/or any other services specified in this Agreement or the applicable Order Terms. Services specified hereinabove shall be applicable only if they are explicitly specified in the applicable Order Terms.
2.4. Number of Instances. KAINOTOMO shall provide, and Customer may request and avail, Services under this Agreement for a maximum number of Instances or websites, as specified in the Order Terms. The number of websites mentioned in the Order Terms, if any, shall be deemed to be the number of Instances for which Services will be provided. If the number of Instances or websites is not specified in the Order Form and/or Order Terms, the number of Instances shall be deemed to be limited to 1 Instance. For clarification, each domain and each subdomain shall be treated as a separate website and separate Instance.
2.5. Service Availability. We will do our utmost to ensure that availability of the Website will be uninterrupted and that transmissions will be error-free. However, due to the nature of the Internet, this cannot be guaranteed. Additionally, Your access to the Website may be occasionally suspended or restricted to allow for repairs, maintenance, or the introduction of new facilities or services at any time without prior notice.
2.6. Consulting Hours. Subject to the terms of this Agreement and the Order Terms, the provision of certain Services by KAINOTOMO under this Agreement and the Order Terms may be subject to a maximum number of hours ("Consulting Hours"). If the number of Consulting Hours specified in the Order Terms are fully utilized, KAINOTOMO will not be liable to provide any further Service that requires the use of Consulting Hours. In order to continue availing such Services that require the use of Consulting Hours, Customer and KAINOTOMO must execute an additional Order Form for the provision of additional Consulting Hours, upon payment of an additional fee and on such terms as may be specified in writing. Under-utilization of Consulting Hours during the Term of the Agreement shall not be a valid ground for any partial or complete refund. Unused Consulting Hours shall expire at the end of the current Term of the Agreement or the Order Form, whichever comes first, and shall not roll over or otherwise provide any benefit for any future Term of the Agreement.
2.7. Date of publication. Materials should only be considered current as of the date of initial publication appearing thereon, without regard to the date on which you may access the information.
2.8. Accuracy and Reliability of Information. The information, material or services included in or available through the Website and Service may include inaccuracies or typographical errors. Advice received via the Website and Service should not be relied upon for personal, medical, legal or financial decisions.
2.9 Third Party Content. The Website or Service may include content posted or made available by third parties. You specifically agree that KAINOTOMO is not responsible for any content sent using, posted on and/or otherwise made available on the Website or Service by any third party.
2.10 Infringing Services. In addition to Customer's other rights and KAINOTOMO's other obligations hereunder, if any Service becomes, or in KAINOTOMO's opinion is likely to become, subject of a claim of infringement, misappropriation, or violation of any intellectual property rights, and in the event of any adjudication that the Service, or any part thereof, does infringe, misappropriate, or violate any intellectual property rights, KAINOTOMO must either provide Customer the right to continue to use that Service, or replace or modify the Service so it is no longer infringing and that is qualitatively and functionally at least the equivalent of the affected Service. If neither of the foregoing is commercially and reasonably available to KAINOTOMO, Customer shall return all materials relating to the Services to KAINOTOMO, or the Service may be deactivated by KAINOTOMO, and KAINOTOMO must then refund Customer a prorated amount of the fees paid for the infringing Service based on the remaining contracted period. KAINOTOMO shall have no obligation or liability hereunder for any claim resulting from: (a) modification of the Services by any party other than KAINOTOMO provided that such claim would have not arisen but for such modification; (b) modification of the Services by KAINOTOMO in accordance with Customer's designs, specifications, or instructions; (c) use other than as granted in this Agreement provided that such claim would have been avoided but for such use; or (d) use of a superseded version of the Services if the infringement claim could have been avoided by using a current version available to Customer.
2.11. Exclusions. The following services are excluded from the scope of Services. KAINOTOMO shall not be liable for any damage or loss faced by Customer or its employees, agents, consultants, contractors or any third party as a result of the following:
- KAINOTOMO reserves the right to deprecate and/or stop updating and/or remove any feature at any time at its sole discretion in accordance with the section on "Modifications" below;
- Any service or activity is not included in Services if it is not explicitly mentioned in any of the following: (i) Section 4; (ii) Section 5; (iii) Section 6; or (iv) Order Terms.
3. Customer's Responsibilities
3.1. User Information. Customer agree to provide and maintain true, accurate, current and complete information about each User.
3.2. User Accounts. Customer are responsible for maintaining the confidentiality of each User's login credentials, including but not limited to username and password, and are fully responsible for any activity that occurs under each User account. Customer agrees to immediately notify KAINOTOMO of any unauthorized use of any User's account, or any other breach of security.
3.3. Timely Payments. Customer agrees to make all payments in a timely manner in accordance with the Section on "Payments and Refunds" below.
3.4 Third Party Liability. In the event that the Customer appoints a third party to assist in any services or provide assistance, the Customer shall bear all the responsibility and liability of the Third Party and KAINOTOMO shall not directly deal with the third party (if appointed by the Customer) unless the Customer gives the approval for the same. Subsequently, it is mandatory that the Customer shall be looped in all communications.
3.5. KAINOTOMO Software Champion.
3.5.1. Customer agrees to provide and maintain true, accurate, current and complete information of Customer's representative for all purposes related to this Agreement ("KAINOTOMO Software Champion"), including the KAINOTOMO Software Champion's name, phone number, and email address. Customer shall be responsible for notifying all changes to the identity and contact information of the KAINOTOMO Software Champion to KAINOTOMO in a timely manner.
3.5.2. The KAINOTOMO Software Champion shall have necessary authorizations to make decisions regarding access and permissions, and/or unrestricted access to personnel responsible for making timely decisions regarding access and permissions.
3.5.3. The KAINOTOMO Software Champion must have appropriate knowledge and clearances when resolving service-related incidents or requests.
3.5.4. During Work Hours, the KAINOTOMO Software Champion must be available, and must respond to KAINOTOMO in a timely manner.
3.5.5 For security reasons, queries related configuration of any Service or product may be made by KAINOTOMO Software Champion only.
3.6 Authorized Users.
3.6.1 Customers may permit Authorized Users to use Services. Access credentials of Authorized Users may not be used by more than one individual at a time. Access credentials of Authorized Users may be transferred from one individual to another if the original Authorized User is no longer permitted to use the Service. Access credentials of Authorized Users shall not be transferred more than once per 30 days.
3.6.2. Issue reports and functional queries, except queries related to configuration, can be made by Authorized Users. In case of any dispute regarding classification as an issue report, functional query and query related to configuration, KAINOTOMO's decision shall be final and binding upon KAINOTOMO and Customer.
3.7 Administrative Access and Remote Access
3.7.1. Customer understands and agrees that in order to perform its roles, duties, responsibilities and obligations under this Agreement and Order Terms, KAINOTOMO and KAINOTOMO personnel may require access to the Server, including the ability to log into the Server and perform administrative actions on the Server.
3.7.2. In case of KAINOTOMO-Hosted Instances, KAINOTOMO shall ensure that KAINOTOMO has administrative access to the Server in order to perform its roles and obligations under this Agreement and applicable Order Terms.
3.7.3. In case of Self-Hosted Instances, Customer expressly agrees to share data with KAINOTOMO and allow adequate access to processes under Customer's governance as may be needed by KAINOTOMO to perform its responsibilities under this Agreement, including but not limited to providing KAINOTOMO the ability to remotely log into the Server that Hosts Customer's Instance through the use of Secure Shell ("SSH") with administrative access (also known as "root", "root user", "root access", "administrator", "administrative access", and "elevated privileges"). Customer is responsible for arranging all consents and approvals that may be necessary for KAINOTOMO to access any such data.
3.7.4 Customer understands and agrees that, in case of Self-Hosted Instances, Customer's refusal or failure to provide the ability for KAINOTOMO personnel to remotely log into the Server through SSH, and/or refusal or failure to provide administrative access for KAINOTOMO personnel on such Server, may result in KAINOTOMO being unable to fulfil its roles, obligations, duties, and functions, under this Agreement, applicable Order Forms, and applicable Order Terms. Customer shall be the sole responsible party for all consequences arising from its refusal or failure to comply with this Section on "Administrative Access and Remote Access".
3.8 Legality of Your Use. KAINOTOMO provides tools and a platform for Your use. You shall be the sole responsible part to ensure that Your use of the Service(s) complies with all applicable laws, and third-party privacy and intellectual property rights. In case of KAINOTOMO-Hosted Instances: (i) KAINOTOMO may remove any information in violation of this clause at any time without prior notification and without assigning any reason; and (ii) KAINOTOMO has the right to terminate access or usage of the Users, and this Agreement, immediately and without prior notice for any violation of this clause. In particular, You agree to not use any KAINOTOMO-Hosted Instance or any Service to host, display, upload, modify, publish, transmit, update, or share any information that:
- Belongs to another person and to which You do not have any right;
- Is defamatory, obscene, pornographic, paedophilic, invasive of another's privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws of India;
- Is harmful to minors;
- Infringes any patent, trademark, copyright or other proprietary rights;
- Violates any law for the time being in force;
- Deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
- Impersonates another person;
- Threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any foreign States;
- Contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
- Is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person; and/or
- Falsifies or deletes any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file, text, information or data that is uploaded or otherwise provided by a User.
3.9. Misuse of Services. You must not misuse Services by interfering with their normal operation or attempting to access them using a method other than through the interfaces and instructions provided by KAINOTOMO. You must not attempt to gain unauthorized access to any Service or content or its related systems or networks. You must not attempt, permit or undertake direct or indirect access to or use of any Services or content in a way that circumvents a contractual usage limit, or use any Services to access or use any of KAINOTOMO's intellectual property except as permitted under this Agreement or the Documentation.
3.10 Abusive or Excessive Use. You must not take any action or otherwise engage in: (i) imposing an unreasonable or disproportionately large load on the Service or the infrastructure of the Service; and/or (ii) abusive or excessive usage of the Services or the infrastructure of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other customers.
3.11 Information Extraction. You shall not, without explicit prior written authorization from KAINOTOMO specifically permitting such an action, perform reverse look-up, trace or seek to trace any information on any other User or Customer of Website, including any account on the Website not owned by You, to its source, or exploit the Website or any service or information made available or offered by or through the Website, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than Your own information, as provided for by the Website.
3.12 Fraudulent or Unlawful Behaviour. You agree not to use the Service for fraudulent purposes, or in connection with criminal offense or other unlawful activity. KAINOTOMO reserves the right to undertake any civil or criminal action for breach of this clause.
3.13 Scanning for Vulnerabilities. We believe in the value of being open and transparent regarding the security of our Services. We value and appreciate Your help in improving Our security. Vulnerability reports submitted in the past by users such as You have helped Us improve security for everyone. Any and all vulnerability scans by You or any third-party on Your behalf must comply strictly with the policy on Reporting Security Vulnerabilities as provided in the Introduction above. In particular, You agree not to: (i) scan or probe the Website or any Service for any vulnerability or bug for any purpose other than the purposes provided in the policy on Reporting Security Vulnerabilities; and/or (ii) use any vulnerability or bug found by you for any purpose other than reporting such bug to Us for improving the security of the Website and Service(s).
3.14.1 Backups for KAINOTOMO-Hosted Instances.
188.8.131.52 Server Failure. In order to reduce the likelihood of data loss in case of Server failure, KAINOTOMO automatically replicates all databases every 4 hours, not including Your files, on KAINOTOMO-Hosted Instances to one or more backup Servers. KAINOTOMO aims to reduce the likelihood of any loss of data. However, these backups may be outdated by 4 hours or more. Restoration of data from such a backup Server, or replacement of the previous Server with a backup Server, may result in a loss of data.
184.108.40.206. Automated Backups. KAINOTOMO automatically creates backups of databases of all KAINOTOMO-Hosted Instances at regular intervals. KAINOTOMO maintains off-site copies of such backups in order to reduce the likelihood of large-scale loss in case of a disaster. KAINOTOMO does not create, and shall not be responsible for the creation of, automated backups of files in Your KAINOTOMO-Hosted Instances. The intervals at which automated backups of databases are created and destroyed are provided in the Documentation and within Your account on the Website. KAINOTOMO shall not be responsible for any loss or damages caused as a result of failure to restore a backup before the expiry of such backup's retention period, as provided in the Documentation and Your account on the Website.
220.127.116.11 Manual Backups. You may, at any time, create manual backups of databases and files of KAINOTOMO-Hosted Instances. You may download and maintain offline copies of backups of databases and files to ensure their safety, security and integrity.
3.14.2 Backups for Customer-Hosted Instances. Unless agreed otherwise in Order Terms, Customer shall be the sole responsible party for ensuring that backups for Customer-Hosted Instances are configured correctly, and are safe and functional. You understand that recovery or restoration of Your data or application requires recoverable backups to be created prior to the occurrence of any incident. In the absence of availability of such a recoverable backup, KAINOTOMO cannot help You in restoring or recovering any data or information. KAINOTOMO shall not be liable for any damaged, corrupt or missing backup, or lack of backup.
3.15 Breaches of this Section. Customer shall be the sole responsible party for all consequences arising from breach of this Section on "Customer's Responsibilities" by Customer, including but not limited to losses or damages of any kind faced by Customer. KAINOTOMO shall not be liable for any breach of KAINOTOMO's roles, responsibilities and obligations under this Agreement caused as a result of breach of this Section on "Customer's Responsibilities", such as by an inability to fulfil its obligations due to non-compliance of this Section by Customer or its Users.
3.16 Breaches of this Agreement. Customer shall be the sole responsible party for breaches of the Agreement caused by Customer, its employees, agents, contractors, Authorized Users and/or KAINOTOMO Software Champion, or any other party authorized by Customer, acting through Customer or acting on behalf of Customer.
3.17 Legal Action by KAINOTOMO. Without prejudice to any other right or remedy under this Agreement or any Order Terms, KAINOTOMO reserves the right to suspend any Service, terminate any account or this Agreement, and/or initiate any civil and/or criminal action for breach of this Section on Customer Responsibilities.
4.1. Types of Hosting. As specified in the Order Terms, Your Instance may be Hosted by KAINOTOMO ("KAINOTOMO-Hosted") or by You ("Self-Hosted"). For clarification, Hosting of Instances or Servers at Customer's premises, Servers under Customer's control, or at third parties of Customer's choice, shall be considered as Self-Hosted. In case neither KAINOTOMO-Hosted nor Self-Hosted is specified explicitly in the Order Terms: (i) if, in any Order Terms between the Customer and KAINOTOMO for the same Instance(s), such Instance(s) are specified as KAINOTOMO-Hosted or Self-Hosted, then such specification shall be applicable to all Order Terms between Customer and KAINOTOMO for the same Instances; (ii) if, in any two or more Order Terms between Customer and KAINOTOMO for the same Instance(s), any Instance is specified as Self-Hosted in one or more Order Terms and KAINOTOMO-Hosted in one or more Order Terms, then the latest of the Order Terms that specifies Self-Hosted or KAINOTOMO-Hosted for such Instance shall be applicable for the determination of whether such Instance is Self-Hosted or KAINOTOMO-Hosted; and (iii) in all other situations, KAINOTOMO-Hosted shall be applicable.
4.2. Self-Hosted. In case of Self-Hosted, Customer shall be responsible for all costs associated with the Servers that Host Customer's Instance(s). Customer may choose to: (i) create and manage a Server within Customer's premises; (ii) rent a Server from a third-party service provider; or (iii) seek KAINOTOMO's assistance to set up the Server at a cloud-hosted third-party service provider at Customer's expense and subject to payment of fees specified by KAINOTOMO for such assistance. In order for KAINOTOMO to fulfil its obligations for Self-Hosted Instances, Customer must comply with its obligations specified in the Section on "Administrative Access and Remote Access" below.
4.3. KAINOTOMO-Hosted. In case of KAINOTOMO-Hosted Instances, KAINOTOMO will provide the ability for Your Users to log in and manage the Instances specified in the Order Terms, subject to the terms of this Agreement and Order Terms. KAINOTOMO-Hosted may be in the form of either Server(s) that may be shared with other customers ("Shared Hosting"), or Server(s) that is/are not shared with other customers ("Dedicated Hosting").
4.3.1. Shared Hosting. Unless specified otherwise in the applicable Order Terms, KAINOTOMO-Hosted Instances shall be in the form of Shared Hosting, however, Your database, folder, and authentication files, will be separate from other customers. Such Server may be Hosted by KAINOTOMO or by a third party.
4.3.2. Dedicated Hosting. If applicable and specified explicitly in the applicable Order Terms, KAINOTOMO-Hosted Instances shall be in the form of Dedicated Hosting.
4.4. Upgrading from Shared Hosting. If You frequently encounter usage limits as specified above, You may choose to: (i) continue using the Service subject to the usage limits described above; (ii) move Your Instance(s) to Dedicated Hosting subject to payment of such additional fees and subject to such additional terms as may be specified by KAINOTOMO and agreed upon by You or Your KAINOTOMO Software Champion; or (iii) move Your Instance(s) to Self-Hosted without any refund for the remaining term of Shared Hosting, subject to execution of new or modified Order Terms specifying that the Instance(s) shall be Self-Hosted. If You choose to move to Dedicated Hosting or Self-Hosted, KAINOTOMO will provide You assistance to move Your Instance(s) from Shared Hosting to Dedicated Hosting or Self-Hosted, as the case may be. However, You shall be solely responsible to bear all costs associated with such Dedicated Hosting or Self-Hosted, as the case may be, including but not limited to fees payable to KAINOTOMO or any third party for such Dedicated Hosting or Self-Hosted.
5. Support Services
5.1. Description of Support Services. Upon executing an Order Form for the provision of Support Services from KAINOTOMO, for the term of such Order Form the Customer shall be entitled for the following services ("Support Services"):
5.1.1. Core Support Services. The following Support Services are provided by KAINOTOMO as "Core Support Services":
- 1. Investigation of Bug reports regarding reporting of error prompts by system; 2. Investigation of Bug reports regarding Core KAINOTOMO Software Features not working correctly; 3. Investigation of Bug reports regarding incorrect values in reports generated by KAINOTOMO Software; 4. Requests to upgrade KAINOTOMO Software Instance; 5. Investigation of performance issues regarding overall system slowdown; 6. Investigation of performance issues regarding any Core KAINOTOMO Software Module being inaccessible for 3 or more users; and 7. Investigation of performance issues regarding slow report generation by KAINOTOMO Software.
5.1.2 Limited Support Services. The following Support Services are restricted up to a maximum of 30 minutes per issue, inclusive of the time spent on providing support through emails, chat, audio calls, video calls, and any other form of assistance, regardless of whether or not such assistance is provided remotely, and regardless of whether or not such assistance is provided through the use of technology ("Limited Support Services"). For removal of doubt, multiple support requests could pertain to the same issue and would be counted against the same time limit. Whether or not multiple support requests pertain to the same issue shall be decided by KAINOTOMO at its sole discretion.
- Guidance regarding usage of Core KAINOTOMO Software Feature(s);
- Guidance regarding implementing / adapting current organization processes into KAINOTOMO Software; and
- Guidance regarding incorrect configuration of Core KAINOTOMO Software Feature(s).
5.1.3. Additional Support Services. Additional Support Services, if any, provided under the title of 'Additional Support Services' in the Order Terms shall be known as "Additional Support Services". Additional Support Services shall be subject to such additional terms as may be specified under the applicable Order Terms. If any Additional Support Services are stated to be subject to the use of Consulting Hours, then such Additional Support Services will be provided by KAINOTOMO subject to the deduction of one Consulting Hour per man-hour spent by KAINOTOMO personnel for providing such Additional Support Services.
5.2. Availing Support Services.
5.2.1 Users can avail Support Services by raising a support ticket from our support portal https://kainotomo.com/documentation .
5.2.2 Support Services will be provided by KAINOTOMO only on the standard product and official release of KAINOTOMO Software. Configurations of options available within Core KAINOTOMO Software Features are a part of the standard product support. Support Services are not provided for code customizations, custom Modules and third-party Modules.
5.2.3 Support Services will be provided only for Instances running on distributions of Linux that are supported. The list of Linux distributions supported is subject to change at any time without prior notice. Customer shall be the sole responsible party to ensure that Customer is using a Linux distribution supported by Bench.
5.2.4 Any updates or Bug fixes will be provided in the form of a new version of KAINOTOMO Software. New versions of KAINOTOMO Software may be released by KAINOTOMO Software Core Maintainers as and when they are ready. KAINOTOMO Software's release schedule may be defined and/or modified by KAINOTOMO Software Core Maintainers at their sole discretion and without KAINOTOMO's control. KAINOTOMO shall not be liable for any loss or damages caused to Customer as a result of any delay in the release of a new version of KAINOTOMO Software. Customer shall be the sole responsible party to ensure that Customer's Instance(s) of KAINOTOMO Software and/or modules, if any, are updated to the latest version of KAINOTOMO Software in order to avail feature updates, bug-fixes, security fixes, and any other improvements made as a part of newer versions of KAINOTOMO Software.
5.3 Applicability of Service Level Agreement. The Service Level Agreement, as updated from time to time, shall be applicable for all Support Services.
5.4 Escalation of Support Requests. If You are unsatisfied with the resolution provided to You by a Support Service, You may escalate Your support request as provided in the Service Level Agreement.
6. Development, Customization and Consultation Services
6.1. Version Support. If the provision of 'Version Support' is specified in the Order Terms, KAINOTOMO shall provide security updates for the version of KAINOTOMO Software mentioned in the Order Terms for the duration mentioned in the Order Terms, subject to: (i) renewal of this Agreement under the terms of this Agreement, and (ii) payment of all dues by Customer. For clarification, security updates shall be offered by KAINOTOMO for known security issues in KAINOTOMO Software that are discovered and fixed using Commercially Reasonable means during the term of the Agreement and prior to the expiration of the time period specified in Order Terms. Customer shall be the sole responsible party to ensure that security updates are installed in Customer's Instance. Security updates may not include feature changes, including addition of new features and removal of old features, however, KAINOTOMO may remove or disable a feature if that feature contains known security vulnerabilities that cannot be fixed using Commercially Reasonable means.
6.2. Consultation Services. If Consulting Hours are specified in the Order Terms, then the following Services shall be available to Customer subject to the deduction of one Consulting Hour per man-hour spent by KAINOTOMO personnel for providing the following Services:
6.2.1 Code Customization and Custom Development.
18.104.22.168 Subject to deduction of Consulting Hours, KAINOTOMO will modify features or develop new features (collectively, "Customized Features") for KAINOTOMO Software as specified in the Order Terms or as requested by Customer. Customer shall not request any Customized Feature to be created in violation of this Agreement, the applicable Order Terms, or KAINOTOMO's or any third-party's intellectual property rights.
22.214.171.124. Customer shall cooperate with KAINOTOMO personnel and provide all information necessary to create the Customized Features as intended.
126.96.36.199 All intellectual property rights in such Customized Features shall be KAINOTOMO's intellectual property, and Customer shall not have any ownership rights for such Customized Features (including its source code, object code, or otherwise). For the purpose of applicable intellectual property laws, such Customized Features shall not be "work done for hire" (by whatever name called).
188.8.131.52. KAINOTOMO shall provide a license to Customer to use, modify, copy, or redistribute, the source code and object code of such Customized Features under the terms and conditions of the same license that is applicable to KAINOTOMO Software.
184.108.40.206 KAINOTOMO shall: (i) provide a copy of the source code of Customized Features to Customer; or (ii) provide an offer to Customer valid for at least three years to provide the source code of Customized Features to Customer or any third party within the specified time period.
220.127.116.11 KAINOTOMO cannot, and does not, warrant the inclusion, exclusion, or maintenance, of any feature or code, in future versions of KAINOTOMO Software or any software that KAINOTOMO Software requires to function (such as library files and external software features). KAINOTOMO shall not be liable for any Customized Feature ceasing to perform as intended as a result of future updates to KAINOTOMO Software released by KAINOTOMO Software Core Maintainers.
18.104.22.168 Upon request or as specified in the Order Terms, and subject to the deduction of Consulting Hours, KAINOTOMO will update or maintain the Customized Features to make such Customized Features compatible with newer versions of KAINOTOMO Software.
6.2.2 Implementation and Configuration. Upon request or as specified in the applicable Order Terms, and subject to the deduction of Consulting Hours, KAINOTOMO will provide support to Customer for the purpose of configuring the options available within Core KAINOTOMO Software Features and/or Customized Features for Customer's specific requirements.
6.2.3 Consultation Services. Upon request or as specified in the applicable Order Terms, and subject to the deduction of Consulting Hours, KAINOTOMO will assist Customer in understanding the Core KAINOTOMO Software Features, Customized Features, and the requirements for development of Customized Features.
6.2.4 Training Services. Upon request or as specified in the applicable Order Terms, and subject to the deduction of Consulting Hours, KAINOTOMO will provide training to Customer personnel for use of Core KAINOTOMO Software Features and/or Customized Features.
7. Additional Terms
7.1. Service Specific Agreement. Use of certain Service(s) may be subject to Service Specific Agreements. Service Specific Agreements are incorporated into this Agreement by reference and are legally binding.
7.2 Order Terms. All terms and conditions specified in Order Terms shall apply to the Services provided under such Order Terms. Order Terms are incorporated into this Agreement by reference and are legally binding. Order Terms may include any or all of the following:
- Plan type, including features and number of Instances / websites covered by this Agreement;
- Domain and/or subdomain names of websites covered by this Agreement;
- Total Consulting Hours (if any);
- Description of Customized Features;
- Whether security updates are to be provided by KAINOTOMO for any particular version of KAINOTOMO Software, including the version number and time period for which such security updates must be provided; and
- Any other terms provided under Order Terms.
7.3. Service Levels. KAINOTOMO holds itself to high standards to ensure high-quality customer experience in every interaction. The Service Level Agreement governs the scope, terms of support, exclusions, categorization, resolution details, release, support availability, and deployment schedule that will be applicable to all Subscribers.
7.4. Order of Precedence. In case of a conflict, the order of precedence shall be: (i) Order Terms; (ii) Service Level Agreement; (iii) Service Specific Agreement specified on the Website; (iv) Service Specific Agreement specified on the Service; and (v) this Agreement.
8. Payments and Refunds
8.1. Payments. If a payment is required to use the Service, or specified in the Order Form, You undertake to make all payments in a timely manner. You understand that failure to make any payment on time may result in suspension or termination of this Agreement and the applicable Order Terms, Your account, or the Service.
8.2. No Chargeback. Chargebacks are strictly prohibited under this Agreement. You understand that initiation of a chargeback for a payment may result in suspension or termination of this Agreement and the applicable Order Terms, Your account, or the Service.
8.3. Cancellations. Customer or KAINOTOMO may cancel any active subscription or Order Form in accordance with "Termination" below.
8.4. Refunds. Refunds may be provided only if they are applicable under the terms of this Agreement and the applicable Order Terms. Refunds, if applicable, will be made to the same payment method or issuing bank from where the initial payment was received. KAINOTOMO may, at its sole discretion, refuse to provide refunds to an alternative payment method or account.
8.5. Expenses. Unless explicitly specified otherwise, fees paid by Customer do not include reasonable out-of-pocket expenses, shipping costs and service provider fees (such as payment processor or vendor management). Customer agrees to pay all such expenses without withholding or deduction. If Customer is required to withhold or deduct any expense, then Customer agrees to increase the amount payable to KAINOTOMO by such amount so that KAINOTOMO receives the full amount of all expenses.
8.6. Taxation for Cyprus Customers. Unless explicitly specified otherwise, fees paid by Customer do not include taxes (including any form of sales tax, use tax, value added tax, service tax, research & development tax, import or export tax, or any other form of taxation). Customer agrees to pay all such taxes without withholding or deduction. If a Customer is required to withhold or deduct any taxes from fees due under this Agreement or Order Form(s), then Customer must notify the same to KAINOTOMO and must wait for KAINOTOMO's approval prior to the payment. KAINOTOMO reserves the right to request for more information, request for proof of deduction, or deny any approval under this clause.
8.7 Taxation for Non-Cyprus Customers. Unless explicitly specified otherwise, fees paid by Customer do not include taxes (including any form of sales tax, use tax, value added tax, service tax, research & development tax, import or export tax, or any other form of taxation). Customer agrees to pay all such taxes without withholding or deduction. If a Customer is required to withhold or deduct any taxes from fees due under this Agreement or Order Form(s), then Customer agrees to increase the amount payable to KAINOTOMO by the amount of such taxes so that KAINOTOMO receives the full amount of all moneys due under this Agreement and all Order Forms.
8.8. Right to Refuse Service. Prices and offers listed on the Service are provided as an invitation to offer and may not indicate availability of the product or service. When You place an order for a product or service, You provide Us an offer to acquire such product or service from Us. KAINOTOMO reserves the right to refuse to provide any product or service to You without assigning any reason. If KAINOTOMO refuses to provide any product or service to You, KAINOTOMO shall process refunds in accordance with the "Refunds" clause above.
8.9. Limitations on Transactions. KAINOTOMO may, in its sole discretion and without prior notification to You, impose limits on the number of transactions or transaction price received from a single customer or payment method.
8.10 Recovery of Dues. KAINOTOMO reserves the right to take any action permitted under this Agreement or an applicable law for the recovery of due payments.
8.11 Exclusive Remedy. This Section on 'Payments and Refunds' provides Your sole remedy and KAINOTOMO's sole responsibility for situations covered by this Section. You understand and agree that this Section forms an essential basis for the Agreement.
9. Intellectual Property Rights
9.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, KAINOTOMO, its Affiliates, its licensors and content providers reserve all of their rights, titles and interests in and to the Website, Service, Documentation, content, logos, software, text, images, graphics, video, audio and other materials created by them, including all of their related intellectual property rights. KAINOTOMO owns all right, title, and interest in and to KAINOTOMO's registered and unregistered, domestic and foreign, trademarks, service marks, trademark applications, service mark applications, trade names, patents, patent applications, copyrights, copyright applications, discoveries, know-how and trade secrets of and relating to the Services, including any and all templates created by KAINOTOMO. No one may copy, reproduce, transmit, post, distribute or create derivative works from the Services without express, prior written authorization from KAINOTOMO. No rights are granted to You hereunder other than as expressly set forth herein.
9.2. Copyright, authors' rights and database rights. All content included on the Website and Service, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of KAINOTOMO, its Affiliates or its content suppliers and is protected by Indian and international copyright, authors' rights and database right laws. The compilation of all content on the Website and Service is the exclusive property of KAINOTOMO and its Affiliates and is protected by laws of India and international copyright and database right laws. All software used on this Website and Service is the property of KAINOTOMO, its affiliates or its software suppliers and is protected by India and international copyright and author' rights laws.
9.3. License by KAINOTOMO. Subject to Your compliance with this Agreement and applicable Order Terms, and payment of applicable fees, if any, KAINOTOMO grants a limited license to access and make use of the Website and Service in accordance with the terms of this Agreement and applicable Order Terms.
9.4. Restrictions on License by KAINOTOMO. Unless explicitly permitted otherwise by KAINOTOMO, You shall not sell, resell, license, sublicense, distribute, make available, rent or lease the Website, Service or any content, or their derivatives. You may not frame or mirror any part of the Website. Without express written consent from KAINOTOMO and/or its Affiliate(s), as may be applicable, You shall not: (i) download (other than page caching) or modify the Website, or any portion of it; (ii) use any meta tags or any other hidden text utilising KAINOTOMO's or its Affiliates' names or trademarks; (iii) use any data mining, robots, or similar data gathering or extraction tools; (iv) otherwise download, copy or modify any information from the Website, or Service or any portion of the Website or Service; and/or (v) create and/or publish Your own database that features substantial parts of this Website, including but not limited to prices and product or service listings, trademarks or any other intellectual property right. Unauthorized use of the materials appearing on this site may violate copyright, trademark and other applicable laws, and could result in criminal or civil action.
9.5 License by Customer. Customer grants to KAINOTOMO and its Affiliates and sublicensees a non-exclusive, royalty-free, irrevocable, perpetual, worldwide and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display any content or information provided by You in the form of reviews, comments, and feedback, throughout the world in any media, and the right to use the name provided by Customer in connection with such content, if You choose. You agree to waive Your right to be identified as the author of such content and Your right to object to derogatory treatment of such content. You agree to perform all further acts necessary to protect any of the above rights granted by You, including execution of deeds and documents at KAINOTOMO's request. KAINOTOMO may, but shall have no obligation to, use feedback provided by You to improve the Website or Service without notice and without any attribution.
9.6 Rights in KAINOTOMO Software. KAINOTOMO Software and its Modules are licensed, not sold. All intellectual property rights, including copyrights, trademark rights and patent rights, in and to KAINOTOMO, KAINOTOMO Software and its Modules shall, at all times, remain with KAINOTOMO or its licensors. KAINOTOMO and its licensors reserve all rights not expressly granted to the Customer. Customers must not alter or remove any license, copyright, disclaimer or other notice from KAINOTOMO Software or its Modules.
9.7 Registered Trade Marks. KAINOTOMO Software is a registered trademark of KAINOTOMO PH LTD. This trademark may not be used in any manner except in strict compliance with the Trademark Use Policy.
10. Disputed Accounts
10.1 Ownership of Data. In case of a paid subscription, the data is owned by the company or organisation in whose name the invoice is made out and not the account holder.
10.2. Disputes Regarding Ownership of Account. In case of dispute about ownership of the account, Customer must provide a government registered document number with the name of the company/organisation and address to prove the ownership of the company/organisation. In case there is no government authorized registration of the company/organisation, then KAINOTOMO will not transfer the account to any other party, and account will remain in the possession of the person that has valid credentials to access such account. If there is a government website that shows the official address and registered owners of the company/organisation and if the registered owner does not have access to the account, then KAINOTOMO will block access to the existing users and re-issue password to one user that will be sent to the registered address via post/courier.
10.3. Costs Associated with Account Disputes. All costs associated with this Section on "Disputed Accounts" must be borne by the company, organisation or person that wishes to gain access to such disputed account.
10.4. Legal Orders. If there is an ongoing legal dispute regarding any account or data, then, subject to a relevant court, government or law enforcement order, we will keep the account frozen until relevant directions are received from a court, government or law enforcement.
10.5 Loss or Deletion of Data During Dispute. In order to avoid loss or deletion of such disputed data, KAINOTOMO requests the parties to a dispute to amicably decide, at the beginning of the dispute, which party shall be responsible to pay for the disputed data and account until such a dispute is resolved. KAINOTOMO reserves the right to undertake any action permitted under these Terms, including termination of any subscription, account or this entire Agreement, for non-receipt of any subscription fee in time. KAINOTOMO shall not be responsible for the loss or deletion of any or all data following termination of any subscription, account or this Agreement by KAINOTOMO due to non-payment of dues during the pendency of any dispute under this Section on "Disputed Accounts".
11. Warranty Disclaimer and Limitation of Liability
11.1 Warranty Conditions. KAINOTOMO will provide Bug-fix support and other Support Services in accordance with the terms of this Agreement.
11.2. Warranty Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, KAINOTOMO PROVIDES THE SERVICE "AS IS" AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE OTHER PARTY WITH RESPECT TO ANY SERVICE OR OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING. EACH PARTY HEREBY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE DEVELOPMENT OF ANY CUSTOMIZED FEATURE UNDER THIS AGREEMENT OR ANY ORDER TERMS SHALL BE SUCCESSFUL OR COMPLETED WITHIN ANY TIME PERIOD OR ANY NUMBER OF CONSULTING HOURS, WHETHER EXPLICITLY SPECIFIED OR NOT.
11.3 Limitation of Liability. KAINOTOMO SHALL BE LIABLE ONLY FOR VIOLATION OF MATERIAL OBLIGATIONS OF THE AGREEMENT, OR AS OTHERWISE REQUIRED BY APPLICABLE LAW. AS FAR AS PERMITTED BY APPLICABLE LAW, KAINOTOMO AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE) ARISING OUT OF (A) THE USE OF THE SERVICE, (B) THE CONTENT ON THE SERVICE, (C) WEB SITES LINKED TO THE SERVICE AND THE CONTENT, GOODS AND/OR SERVICES PROVIDED THEREIN (D) ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE UPON THE INFORMATION WITHIN, OR CONTENT OF, THE SERVICE, AND/OR (E) THE INABILITY TO USE THE SERVICE AND CONTENT CONTAINED THEREIN (INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFITS, GOODWILL OR SAVINGS, DOWNTIME, DAMAGE TO OR REPLACEMENT OF PROGRAMS AND DATA), WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF THE FOREGOING LIMITATION IS PROHIBITED BY AN APPLICABLE LAW, KAINOTOMO'S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT IS LIMITED TO RE-PERFORMANCE OF THE SERVICES OR LIQUIDATED DAMAGES. IN NO EVENT WILL KAINOTOMO BE LIABLE FOR PROVIDING SUBSTITUTE SERVICES. IN NO SITUATION SHALL KAINOTOMO'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES' PAYMENT OBLIGATIONS UNDER THE "PAYMENTS AND REFUNDS" SECTION.
11.4 Exclusive Remedy. IN THE EVENT OF A BREACH OF THE WARRANTIES SET FORTH IN THIS AGREEMENT, CUSTOMER'S EXCLUSIVE REMEDY, AND KAINOTOMO'S ENTIRE LIABILITY, WILL BE THE RE-PERFORMANCE OR RE-DELIVERY OF THE DEFICIENT SERVICE, OR IF KAINOTOMO CANNOT SUBSTANTIALLY CORRECT A BREACH IN A COMMERCIALLY REASONABLE MANNER, TERMINATION OF THE RELEVANT SERVICE, IN WHICH CASE CUSTOMER MAY RECEIVE A PRO RATA REFUND OF THE FEE PAID FOR THE DEFICIENT SERVICE AS OF THE EFFECTIVE DATE OF TERMINATION.
11.5 Essential Basis. CUSTOMER ACKNOWLEDGES THAT KAINOTOMO HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE ON THE DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY AND THE SAME FORM AN ESSENTIAL BASIS FOR THE BARGAIN BETWEEN THE PARTIES.
12.1 Definition of Confidential Information. "Confidential Information" means all 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 of KAINOTOMO includes the Services, and the terms and conditions of this Agreement, all invoices (including pricing), any software or documentation related to the Services, samples and templates. Confidential Information of each party includes findings, business and marketing plans, trade secrets, technical know-how, technology and technical information, inventions, materials, product development plans and designs, and business processes. However, Confidential Information does not include any information that (i) is or becomes a common knowledge or common practice in the industry, or 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. For the avoidance of doubt, the non-disclosure obligations set forth in this "Confidentiality" section apply to Confidential Information exchanged between the parties in connection with the Services provided under this Agreement.
12.2 Protection of Confidential Information.As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not 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, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement. Neither party will disclose the terms of this Agreement or any invoice to any third party other than its group companies, legal counsels and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its group companies, legal counsels or accountants will remain responsible for such group company's, legal counsel's or accountant's compliance with this "Confidentiality" section. Notwithstanding the foregoing, KAINOTOMO may disclose the terms of this Agreement and any applicable invoice to a subcontractor to the extent necessary to perform KAINOTOMO's obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
12.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, including but not limited to obligations under a law, court order, government order or law enforcement provided that the Receiving Party gives: (a) prior notice of the compelled disclosure to the Disclosing Party (to the extent legally permitted); and (b) 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 that Confidential Information.
13.1 Modifications of this Agreement. This Agreement may be modified by KAINOTOMO from time to time. If We do this, We will post the modified Agreement on this page and will indicate the date this Agreement was last updated. Any such modifications will become effective no earlier than fourteen (14) days after they are posted, except that the following categories of modifications may be effective immediately: (i) modifications required to provide new features without negatively affecting your rights under these Terms; (ii) modifications made to correct typographical errors; and/or (iii) or modifications made to comply with legal obligations, including but not limited to Our or Your obligations under a law, regulation, court order or government order. You shall be responsible to review the Agreement from time to time in order to be aware of any such modifications to these Terms. We may, for Our convenience only and without waiving Your obligation to periodically review the Agreement, attempt to notify You of significant modifications to this Agreement through the Service user interface, in an email notification, or through other reasonable means. You understand and agree that Your continued access, registration or use of the Website or Service beyond the effective date of such modification shall be deemed to be Your acceptance of all modifications to the Agreement.
13.2. Modification of Service. KAINOTOMO may, at any time and without prior notice, introduce new features, remove or stop offering old features, or modify existing features of the Website or Service. KAINOTOMO reserves the right to charge a fee to access any new feature or service. KAINOTOMO reserves the right to delete or modify information on the Website, Service, or Documentation, without prior notice.
13.3 Discontinuation of Service. Customer acknowledges that KAINOTOMO has the right to discontinue the development of any part of KAINOTOMO Software and support for that part of KAINOTOMO Software, including the distribution of older software versions, at any time in its sole discretion, provided that KAINOTOMO agrees not to fully discontinue support for KAINOTOMO Software during the current term of an Order Form, subject to the termination provisions herein. Order Forms and subscriptions shall not be renewable if KAINOTOMO discontinues development of KAINOTOMO Software. Notwithstanding the foregoing, if KAINOTOMO discontinues the development and support for a particular part of KAINOTOMO Software, Services for any remaining parts of KAINOTOMO Software covered by this Agreement shall not be adversely affected.
13.4 Modification of Price. KAINOTOMO reserves the right to, at any time, in its sole discretion and without prior notification, modify the price of any Service offered by KAINOTOMO, or to require payment for any Service that was previously provided by KAINOTOMO without any charge. No such change in price shall be applicable to the then current term of any active Order Form, however, future Order Forms and renewals of any Order Forms shall be charged at the revised rates.
14.1 Indemnification by Customer. Customer shall indemnify and hold KAINOTOMO harmless from and against any claim, suit, proceedings, losses, expenses incurred, damages or costs awarded, or amounts paid in a settlement, arising out of (i) unauthorized access by persons using Customer's login credentials, of data provided by Customer, (ii) a breach of the terms of this Agreement or Order Terms, (iii) Customer's failure to comply with applicable laws in its use of the Services, (iv) use beyond the scope of the intended use, or (v) any gross negligence or intentional misconduct by Customer, its Affiliates, Users, employees, contractors or authorised agents, or any combination thereof. Customers shall have no obligation or liability hereunder for any claim resulting from KAINOTOMO's sole negligence.
14.2. Exclusive Remedy. This "Indemnification" section states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any claim described in this section.
15.1 Non-solicitation of personnel. Each Party (in this clause, "First Party") agrees that for period of validity of this Agreement, including the Initial Term and any Renewal Term(s) of this Agreement, and for one (1) year after the termination of this Agreement, First Party shall not solicit and/or recruit any employee or consultant of the other Party (in this clause, "Second Party") or any of its subsidiaries, affiliates and/or associated companies. Notwithstanding the foregoing, this provision shall not in any way restrict First Party's right to solicit or recruit generally in the media or on the internet.
16. Age and Competence
16.1. Legal Competence. You warrant that You possess the legal authority to accept this Agreement and thereby enter into an agreement with KAINOTOMO under the applicable laws, and to use the Service(s) in accordance with all terms and conditions herein and in Order Terms.
16.2 Use by Children. The Service is not intended for children under 18 years of age. You affirm that You are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. If You are under 18 years of age, then please do not use the Service. Please contact us immediately if You have used our Service and are under 18 years of age or if You are the legal guardian of someone who has used our Service and is under 18 years of age.
16.3. Companies, Organizations and Others. If an individual is agreeing to use the Service(s) on behalf of a company, organization or another entity whether or not it is registered or incorporated, such individual agrees that (s)he represents such company, organization or entity (as the case may be) and has the legal authority to accept this agreement on behalf of such company, organization or entity (as the case may be).
16.4 KAINOTOMO's Competitors. KAINOTOMO's direct competitors are prohibited from accessing the Services, except with KAINOTOMO's prior written consent. The Services may not be accessed or used for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.
17. Term and Termination
17.1 Term of Agreement. This Agreement shall come into force on the date of acceptance of this Agreement by the Customer or/and as mentioned in the Order Terms, and shall remain in force until the earliest of: (i) a period of one month from the termination or expiry of all Order Terms under this Agreement; (ii) termination of this Agreement by KAINOTOMO or Customer in accordance with the terms of this Agreement ("Term").
17.2 Term of Order Forms. The term of each Order Form shall be as specified in the Order Form. Except as expressly provided in the applicable Order Terms, promotional or one-time priced subscriptions shall not be renewed at the promotional or one-time price, but shall instead be renewed at KAINOTOMO's applicable list price in effect at the time of the renewal.
17.3.1 Termination by Customer. Customer may terminate this Agreement (a) for cause upon 30 days written notice to KAINOTOMO of a breach of Sections 4, 5 or 6 solely by KAINOTOMO if such breach remains uncured at the expiration of such period; or (b) for cause immediately upon sending a written notice if KAINOTOMO becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. For the purpose of this clause; or (c) upon 45 days written notice to KAINOTOMO without assigning any reason , written notice must be sent to
17.3.2 Termination by KAINOTOMO. KAINOTOMO may terminate this Agreement and/or subscription(s) or Service(s) purchased or paid for under this Agreement (a) for cause upon 30 days written notice to Customer of a breach of this Agreement by Customer if such breach remains uncured at the expiration of such period; (b) for cause immediately upon sending a written notice if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; (c) for cause immediately and without notice for failure to make timely payment; or (d) upon 45 days written notice to Customer without assigning any reason. For the purpose of this clause, written notice, if required, must be sent to the Customer's registered email address.
17.4 Effect of Termination. KAINOTOMO will retain Your data for a minimum period of 180 days from the date of termination of this Agreement, during which time it may be available for You to download. After this period of 180 days from the date of termination of this Agreement, KAINOTOMO may delete Your data without prior notice and without assigning any reason. You shall be the sole responsible part for any damage or loss incurred by You or a third party as a result of destruction or loss of access to such data.
17.5 Refund or Payment Upon Termination. Upon termination of this Agreement, all Order Forms and Services under this Agreement shall be automatically terminated, and Customer shall pay to KAINOTOMO all pending dues on a pro-rata basis under this Agreement and/or Order Forms. If this Agreement is terminated by Customer, KAINOTOMO shall refund on a pro rata basis to the Customer any prepaid fees covering the remainder of the Term of active Order Forms after the effective date of termination. If this Agreement is terminated by KAINOTOMO without any reason, KAINOTOMO shall provide to Customer a pro-rated refund for the remaining period of active Order Forms and Consulting Hours. In no circumstance shall KAINOTOMO provide any refund for Consulting Hours that have been used, and in no circumstance shall termination relieve Customer of its payment obligations.
17.6 Surviving Provisions. The sections titled "Payment and Refunds", "Confidentiality", "Term and Termination", "Modifications", "Warranty Disclaimer and Limitation of Liability", "Indemnification", "Non-Solicitation", "General Provisions", and such other terms that by their nature survive this Agreement, shall survive the termination of this Agreement for a period of three years from the date of termination of this Agreement.
18. General Provisions
18.1 Entire Agreement. This Agreement constitutes the entire agreement between KAINOTOMO and Customer pertaining to the subject matter hereof and supersedes in its entirety all written or oral agreements between the Parties.
18.2 Third-Party Websites, Apps or Services. The Website or Service may contain links to external third-party websites, apps or services. KAINOTOMO does not guarantee, approve or endorse the information or product available on such third-party websites, apps or services, nor does a link indicate any association with or endorsement of the linked website, app or service. We do not operate or control and have no responsibility for the information, products and/or services found on any external sites. Nor do We represent or endorse the accuracy or reliability of any information, products and/or services provided on or through any external sites, including, without limitation, warranties of any kind, either express or implied, warranties of title or non-infringement or implied warranties of merchant-ability or fitness for a particular purpose. You assume complete responsibility and risk in your use of any external website, app or service. KAINOTOMO shall not be responsible for any loss or damage incurred by You while dealing with any third party. You should direct any concerns regarding any external link to the relevant website's, app's or service's administrator, owner or webmaster. You are hereby informed to exercise utmost caution when visiting any third-party website, app or service.
18.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, invalid, prohibited, or unenforceable to any extent for any reason, the said provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. In case of such an event, the parties agree to amend this Agreement through mutual consent on a best effort basis in order to achieve the original objective of this Agreement.
18.4 Force Majeure. The parties understand that there may be an occurrence of an event or effect that cannot be reasonably anticipated or controlled, which even by the exercise of reasonable diligence cannot prevent non-performance, and in particular, performance of the Services. These occurrences and events include, but are not limited to: acts of God; acts of government; acts of war; natural disaster; epidemic; pandemic; acts of public enemies; acts of terror; strikes or other labour problems; floods; fires; earthquakes; civil unrest; riots; explosions; outages; general Internet brown-outs or black-outs or shortage of bandwidth; hardware failures; hacking, denial of service or ransomware attacks; actions of the elements; or other similar causes beyond the control of Customer or KAINOTOMO in the performance of this Agreement. Upon the occurrence of such event or effect, the parties agree to excuse performance under this Agreement and not hold the other liable for the delay in or failure of performance under this Agreement unless an alternative method of performance of the contract is available without violating any law, court order, government order and the terms of this Agreement. Any such delay in or failure of performance shall not constitute default or give rise to any liability for damages.
18.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety, without the other party's consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, KAINOTOMO will refund to Customer any prepaid fees covering the remainder of the Term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
18.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
18.7 Third-party beneficiaries. There are no third-party beneficiaries under this Agreement. Customer's Users are not third-party beneficiaries under this Agreement.
18.8 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
18.9 Arbitration, Governing Law and Jurisdiction. Both Parties shall make every effort to resolve all differences amicably taking into consideration the cause for which the parties have purposed to work together. In the event of any unresolved dispute the same shall be settled in accordance with The Arbitration and Conciliation Act, 1996 by appointing a sole arbitrator with mutual consent. The decision of the arbitrator shall be final. The parties shall bear their own individual costs and the costs of the arbitration shall be borne equally by the parties. The venue of arbitration and the seat of arbitration shall only be at Mumbai in India. The language of the arbitration shall be English. This Agreement shall be governed and construed in accordance with the Laws of India. The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of India. The parties agree to subject themselves to the jurisdiction of Courts in Mumbai.
18.10 Interpretation. In this Agreement, where the context so requires the singular includes the plural and the plural includes the singular; words importing any gender include the other genders; references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to; the word "or" shall be deemed to include "and/or", the words "including", "includes" and "include" shall be deemed to be followed by the words "without limitation"; references to articles, sections (or subdivisions of sections) or exhibits or schedules are to those of this Agreement; all titles, headings and subheadings are for convenience only and do not affect the meaning of the section / clause; and references to agreements and other contractual instruments shall be deemed to include all subsequent amendments and other modifications to such instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Agreement.
18.11 Supersedes Prior Agreements. This Agreement supersedes any and all prior agreements entered into by and between KAINOTOMO and the Customer.
18.12. Contact Information. If You have any questions or comments about this Agreement, You can contact Our grievance officer at