KontactApp Usage Agreement
KontactApp is a software development company that creates industry specific, cloud-based / SaaS products and solutions that are sold to customers on a subscription basis. Our products may include multiple embedded services that form the total subscription that we resell or recommend to our customers. Our products are packaged, installed and distributed through the KontactApp.com platform and interconnect to other internet services from time to time.
The online subscription form (“Order Form”) and Exhibits A and B are attached and incorporated by reference and form a part of this Agreement. In the event of any conflict or inconsistency in the definition or interpretation of any word, responsibility, schedule, or the contents or description of any task, deliverable, goods, service, or other work, or otherwise, , such conflict or inconsistency shall be resolved by giving precedence first to this Agreement and then to such other documents according to the following priority:
Order Form (including any subsequent Order Form that the parties may enter into)
Exhibit A: End-User Disclosure – KontactApp.com Service Agreement
Exhibit B: Professional Services Agreement (if required)
C. Entire Agreement
The terms of this Agreement, and the Exhibits, shall constitute the complete and exclusive statement of understanding between the parties which supersedes all previous agreements, written or oral, and all communications between the parties relating to the subject matter of this Agreement.
KontactApp USAGE AGREEMENT
THIS USAGE AGREEMENT (“AGREEMENT”) GOVERNS ANY TRIAL OF THE SERVICES. IF YOU PURCHASE OR USE OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THOSE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, CREATING AN ACCOUNT AND LOGGING IN OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
This terms and conditions herein covers both job seekers / candidates (mobile app users) as well as company / entities (hiring companies).
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring our performance or functionality, or for any other benchmarking or competitive purposes.
Table of Contents
2. Free Trials
3. Purchased Services
4. Use of the Services
5. Third-Party Providers
6. Fees and Payment for Purchased Services
7. Proprietary Rights
9. Warranties and Disclaimers
10. Mutual Indemnification
11. Limitation of Liability
12. Term and Termination
13. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
14. General Provisions
"Affiliate" means any entity which 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.
"AppExchange" means the online directory of applications that interoperate with the Services, located at http://www.KontactApp.com or at any successor websites.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents (including online documents) for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means the products and services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.
“Subscription Term” means the subscription term specified in an Order Form;
"Trial Services" means the online, Web-based and mobile applications built by KontactApp and provided on the KontactApp.com platform and/or other designated websites as described in any materials, that are ordered by You as part of a 30-day free trial including associated offline or Third Party Applications.
"Third-Party Applications" means mobile applications, online, Web-based applications and offline software products that are provided by third parties, interoperate with the Purchased Services and the Trial Services, and are identified as third-party applications, including but not limited to Amazon.com, Google.com, Apple.com and any internet posting site(s) or those listed on the AppExchange.
"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased as specified on an Order Form, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
“User Guide” means any printed or online materials provided by KontactApp.com to You from time to time outlining usage instructions.
"We," "Us" or "Our" means the KontactApp company described in Section 13 (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 Affiliates of that company or entity.
"Your Data" means all electronic data or information submitted by You to the Purchased Services.
3. PURCHASED SERVICES
3.1. Provision of Purchased Services.
We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms for the Subscription Term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
3.2. User Subscriptions.
Unless otherwise specified in the applicable Order Form, (i) the Purchased Services are purchased as User subscriptions and may be accessed by no more than the number of Users specified in an Order Form, (ii) additional User subscriptions may be added during the Subscription Term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4. USE OF THE SERVICES
4.1 Our Responsibilities.
We shall: (i) use commercially reasonable efforts to make the Purchased Services available as close to 24 hours a day, 7 days a week, except for: (a) AWS planned outages, noting that AWS is obliged to provide Us with a minimum of 8 hours notice of any planned outages that will apply to the Purchased Services and which We shall use our best endeavours to ensure is scheduled to the extent practicable during the weekend hours from 6:00 p.m. Eastern Standard Time Friday to 3:00 a.m. Eastern Standard Time Monday), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror strikes, force majeure or other labor problems (other than those involving Our employees), or any unavailability arising from a failures or delay caused by the provider of a Third Party Application, and (c) provide the Purchased Services only in accordance with applicable laws and government regulations;
(ii) provide the Purchased Services
in accordance with the Order Form
in a diligent manner;
to the standard of skill and care expected of a service provider experienced in the type of services required by the Order Form;
in compliance with all applicable Laws, Singapore standards and industry codes of conduct; and
(f) in accordance with professional principles and industry standards;
4.2. Your Responsibilities.
You shall (i) be responsible for Users’ compliance with the relevant sections of this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Purchased Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Purchased Services or their related systems or networks (g) mass download CVs / Resumes for the purpose of building your own database, (h) use KontactApp for the purposes of building a competitive product / service, (i) use KontactApp in any manner other than it was intended for, (j) violate or attempt to violate the security of any KontactApp Site including attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization;
(k) post any resume or apply for any job on behalf of another party;
(l) set more than one copy of the same resume to public at any one time;
(m) access data not intended for You or logging into a server or account which You are not authorized to access; (n) send unsolicited mail or email, make unsolicited phone calls or send unsolicited faxes promoting and/or advertising products or services to any User, or contact any users that have specifically requested not to be contacted by You; (o) harass, incite harassment or advocate harassment of any group, company, or individual ; (p) You shall use the KontactApp Resume Database as provided in these Terms and in any contract You have with KontactApp. You shall use the KontactApp Resume Database in accordance with all applicable privacy and data protection laws, and You agree You shall not further disclose any of the data from KontactApp Resume Database to any third party, unless You are an authorized recruitment agency, staffing agency, advertising or other agency or using the resume explicitly for employment purposes; (q) for any purpose other than as an employer seeking employees, including but not limited to advertising promotions, products, or services to any resume holders;
(r) to make unsolicited phone calls or faxes or send unsolicited mail, email, or newsletters to resume holders or to contact any individual unless they have agreed to be contacted (where consent is required or, if express consent is not required, who has informed you that they do not want to be contacted.
4.3. Usage Limitations.
The Purchased Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls and searches You are permitted to make against Our application programming interface, and, for Purchased Services that enable You to provide public websites, on the number of page views by visitors to those websites. Any such limitations are specified in the User Guide. The Purchased Services provide real-time information to enable You to monitor Your compliance with such limitations.
5. THIRD-PARTY APPLICATIONS
5.1. Acquisition of Third-Party Applications.
We may offer Third-Party Applications for sale or use under and if You agree to purchase these Third Party Applications they will be specified on an Order Form. Any other acquisition by You of the Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and the provider of any Third-Party Application, is solely between You and the provider of any Third-Party Application. We do not warrant or support Third Party Applications, whether or not they are designated by Us as “certified” or otherwise, except to the extent specified in an Order Form. No purchase of Third Party Applications is required to use the Purchased Services.
5.2. Third-Party Applications and Your Data.
If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data by the provider of any Third Party Application resulting from any such access by the provider of any Third-Party Application. The Purchased Services shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1. User Fees.
You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees for the Purchased Services are quoted and payable in United States of America (USD) dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. User subscription fees are calculated based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, fees for User subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term.
6.2. Invoicing and Payment.
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Purchased Services listed in the Order Form for the initial Subscription Term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information.
You may withhold payment of any amount that you dispute in good faith until the dispute has been resolved, provided that You pay within the agreed timeframe the undisputed amounts in an invoice. Any invoices that are not disputed by You within 30 days of receipt will be deemed to have been accepted.
6.4. Overdue Charges.
If any charges are not received from You by the due date, and those charges are not the subject of a dispute pursuant to clause 6.3, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
6.5. Suspension of Service and Acceleration.
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), and those charges are not the subject of a dispute pursuant to clause 6.3, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
7. PROPRIETARY RIGHTS
7.1. Reservation of Rights.
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.3. Ownership of CVs / Resumes and any Data on the KontactApp platform.
As between Us and You, we exclusively own all rights, title and interest in and to all of our Data. You may not (mass) download CVs / resumes for the purposes of building your own database. You may not (mass) download CVs / resumes for tendering and submitting to 3rd parties for any purpose other than, to the best of your knowledge, seeking candidate approval. You must protect the database and not permit any 3rd parties to access the database.
We shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.
8.1. Definition of Confidential Information.
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, (i) 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) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its 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.
8.3. 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. WARRANTIES AND DISCLAIMERS
9.1. Mutual Warranties.
Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not intentionally transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
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.
10. MUTUAL INDEMNIFICATION
10.1. Indemnification by Us.
We shall defend You against any claim, demand, suit, or proceeding (" Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense.
10.2. Indemnification by You.
You shall defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
10.3. Exclusive Remedy.
This Section 10 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability.
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $25,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
11.2. Exclusion of Consequential and Related Damages.
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. TERM AND TERMINATION
12.1. Term of Agreement.
This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.
12.2. Term of Purchased User Subscriptions.
User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the Subscription Term specified therein. You may elect to renew the Subscription Term on the same terms and conditions for an additional term of the same period by giving Us 30 days written notice. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case, if agreed by You the pricing increase shall be effective upon renewal and thereafter.
12.3. Termination for Cause.
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Termination arising from Failure of the provider of a Third Party Application
We may terminate this Agreement at any time but by providing as much notice as is reasonably possible if We are no longer able to provide the Purchased Services as a result of the failure or unavailability of any Third Party Application. Upon any termination by Us under this clause, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination.
12.5. Refund or Payment upon Termination.
Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.6. Return of Your Data.
Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, and subject to payment by You of all amounts due under this agreement, We will make available to You for download, at your cost (i) Your KontactApp.com Data elements in comma separated value (.csv) or similar format along with attachments, so long as the KontactApp.com instance is still available and, (ii) Your non KontactApp.com Data elements in comma separated value (.csv) or similar format along with attachments so long as the non KontactApp.com instance(s) are still available. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
12.7. Surviving Provisions.
Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.2 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13. NOTICES, GOVERNING LAW AND JURISDICTION
13.1. Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.2. Agreement to Governing Law and Jurisdiction.
Each party agrees to the governing law for this agreement to be the law of Singapore without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts of Singapore.
13.3. 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.
14. GENERAL PROVISIONS
14.1. 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.
14.2. Waiver and Cumulative Remedies.
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
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.
14.4. Attorney Fees.
You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment)
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.6. Entire Agreement.
This Agreement, which is an exhibit to the Order Form, including all exhibits and addenda thereto, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Exhibit A: KontactApp.com End-User Disclosure – KontactApp.com Usage Agreement
In order to provide you with the Reseller Application as part of the Purchased Services, We are making available to you a software platform provided by KontactApp (the “Platform”).
"AppExchange" means the online directory of on-demand applications that work with the Service, located at http://www.appexchange.com or at any successor websites.
“Reseller” means KontactApp.com.
“Reseller Application means KontactApp’s product known as KontactApp.com and “!K”
"Platform" means the mobile application ‘App’, online, Web-based platform service provided by KontactApp to Reseller in connection with Reseller’s provision of the Reseller Application to You.
“KontactApp Service” means the mobile application ‘App’, online, Web-based application and platform service generally made available to the public via http://www.KontactApp.com and/or other designated Apps and websites, including associated offline components but excluding AppExchange applications.
“KontactApp” and “!K” means KontactApp.com,(Singapore).
"Your Data" means all electronic data or information submitted by You as and to the extent it resides in the Service.
Use of Service.
Notwithstanding any access You may have to the Platform or the KontactApp Service via the Reseller Application, Reseller is the sole provider of the Reseller Application and You are entering into a contractual relationship solely with Reseller. In the event that Reseller ceases operations or otherwise ceases or fails to provide the Reseller Application, KontactApp has no obligation to provide the Reseller Application or to refund You any fees paid by You to Reseller.
You (i) are responsible for all activities occurring under Your User accounts; (ii) are responsible for the content of all Your Data; (iii) shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform and the KontactApp Service, and shall notify Reseller or KontactApp.com promptly of any such unauthorized use You become aware of; and (iv) shall comply with all applicable local, state, federal and foreign laws and regulations in using the Platform and the KontactApp Service.
You shall not (i) modify, copy or create derivative works based on the Platform or the KontactApp Service; (ii) frame or mirror any content forming part of the Platform or the KontactApp Service, other than on Your own intranets or otherwise for Your own internal business purposes; (iii) reverse engineer the Platform or the KontactApp Service; or (iv) access the Platform or the KontactApp Service in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Platform or the KontactApp Service.
If either You or KontactApp is compelled by law to disclose confidential information of the other party, it shall provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the other party’s cost, if the other party wishes to contest the disclosure.
You agree that KontactApp shall have a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into any KontactApp products or services any suggestions, enhancement requests, recommendations or other feedback provided by You or Your Users relating to the operation of the Platform and/or the KontactApp Service.
Subscriptions for the Platform and the KontactApp Service are non-cancelable during a subscription term, unless otherwise specified in Your agreement with Reseller.
The Platform and KontactApp Service includes a certain cumulative amount of storage per User subscription for no additional charge. Contact Your Reseller for additional information. Additional storage may be available for purchase from the Reseller.
9) No Warranty.
KONTACTAPP.COM MAKES NO WARRANTIES OF ANY KIND, INCLUDING BUT NOT LIMITED TO WITH RESPECT TO THE PLATFORM, THE KONTACTAPP SERVICE, AND/OR THE RESELLER APPLICATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. KONTACTAPP.COM MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE RESELLER APPLICATION. KONTACTAPP.COM DOES NOT REPRESENT OR WARRANT THAT (A) THE RESELLER APPLICATION WILL BE AVAILABLE, SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH THE KONTACTAPP.COM SERVICE OR ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SYSTEM OR DATA, (B) THE RESELLER APPLICATION, THE PLATFORM OR THE KONTACTAPP SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY DATA STORED USING THE RESELLER APPLICATION WILL BE ACCURATE, RELIABLE, OR SECURE, (D) ERRORS OR DEFECTS IN THE RESELLER APPLICATION, THE PLATFORM, OR THE KONTACTAPP SERVICE WILL BE CORRECTED, OR (E) THE RESELLER APPLICATION OR THE SYSTEMS USED BY RESELLER TO MAKE RESELLER APPLICATION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE PLATFORM AND THE KONTACTAPP SERVICE IS PROVIDED STRICTLY ON AN "AS IS" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, KONTACTAPP.COM DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO RESELLER APPLICATION AND THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
10) No Liability.
IN NO EVENT SHALL KONTACTAPP HAVE ANY LIABILITY TO YOU OR ANY USER FOR ANY DAMAGES WHATSOVER, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON LOST PROFITS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
KontactApp may contact You regarding new KontactApp service features and offerings.
12)Google Programs and Services.
Platform or KontactApp Service features that interoperate with Google programs and services depend on the continuing availability of applicable Google application programming interfaces (“APIs”) and programs for use with the Platform and the KontactApp Service. If Google Inc. ceases to make such APIs and/or programs available on reasonable terms to KontactApp, KontactApp may cease providing such features without entitling You or Reseller to any refund, credit, or other compensation.
13)Apple Programs and Services.
Platform or KontactApp Service features that interoperate with Apple programs and services depend on the continuing availability of applicable Apple application programming interfaces (“APIs”) and programs for use with the Platform and the KontactApp Service. If Apple Inc. ceases to make such APIs and/or programs available on reasonable terms to KontactApp, KontactApp may cease providing such features without entitling You or Reseller to any refund, credit, or other compensation
14)Third Party Beneficiary.
Exhibit B- Professional Services Agreement
The Professional Services work described in this Professional Services Agreement will be carried out under the following terms.
Price & Payment Terms
100% of the total amount due is invoiced on acceptance of this proposal (i.e. on the date You sign the attached Order Form or the date on which work commences, whichever is sooner) and payable to KontactApp in accordance with the payment terms specified in the Agreement;
The above amounts do not include any work other than as described in this document. We will only be obliged to perform other work if we agree to do so in writing. Additional work will be charged at our then current daily rate, per resource (or a pro rata sum for any part day) and will be payable within 30 days of us giving you an invoice for that work.
Travel & Accommodation
All reasonable travel and/or accommodation costs (including taxi fares) and any other project expenses, incurred on Customer’s behalf will be billed separately to the Customer and will be payable by the Customer provided that in all cases the We have first obtained Your prior written approval to incur those costs, expenses, fees or charges. Please note that for flights and accommodation arranged and booked by KontactApp a 10% administration fee will be charged on top of the actual cost. All expense invoices are payable within 14 days and receipts are available on request.
Third Party Requirements
Any third party technology (hardware or software) which we require to provide the services to you (other than our own tools and equipment) are not included and it is your responsibility to provide that technology. KontactApp will organize third party services to support your engagement (e.g. training room hire, laptop hire etc) if required. A 10% administration fee will be added to the cost of the product or service should these additional services be utilised.
We warrant to you that we will perform the services with due care and skill and that all deliverables provided to you under this agreement will comply in all material respects with any specifications or description set out in this document (unless you agree otherwise). If we breach any of these warranties then, without any additional charge to you and as your sole remedy, we will, at our option, replace or repair the goods or provide the services again.
Ownership of deliverables
Each party retains ownership over any intellectual property owned by that party and nothing in this agreement acts to assign to the other party any title in its intellectual property. You are permitted to use the deliverables we provide to you under this agreement for your own internal business purposes, without having to pay us any royalties. This right is non-transferable.
Terms and Termination
Either party may terminate this agreement by giving written notice to the other party, if that other party breaches any obligation under this agreement and the breaching party has not remedied the breach within 30 days after receipt of that notice. If this agreement is terminated, then in addition to any other rights we have at law, we will be entitled to payment from you for the services we have provided to you up to the date of termination. If the services are not being provided on a time and materials basis then the amount payable will be calculated at our then current standard rates per working day, per resource, plus expenses.
Limitation of Liability
Nothing in this agreement will operate so as to exclude the application of any of the provisions of the Competition and Consumer Act 2010 (Cth) or any equivalent State or Territory legislation, where the relevant legislation would render it void to do so. To the extent that we are able to do so, we limit our liability for a breach of any condition or warranty implied by such legislation, at our option, to replacing or repairing goods or providing the services again.
Our liability (whether in contract, tort (including negligence) under statute, or otherwise) will not extend to any of your lost staff time, any loss of profit, savings, revenue, interest or goodwill, or for loss of, or loss of use of, any software or data, computer or other equipment or plant, or for losses or liabilities in relation to any third party or for any failure or delay caused by events beyond our reasonable control, including, without limitation, your failure to furnish necessary information, transportation delays, communication or equipment failures or labor disputes or for any consequential, indirect, incidental or special loss, even if we have been advised of the possibility of such loss and even if such loss is caused by our negligence or that of our agents or contractors. In all other circumstances, our liability (whether in contract, tort (including negligence), under statute, or otherwise), for any and all claims arising under or in connection with this agreement will not in the aggregate exceed the fees received by us as at the date on which the event which gave rise to the action first occurred.
The parties agree that if there is a dispute they will work together in good faith first, to resolve the matter internally by escalating it to higher levels of management and then, if necessary, to use a mutually agreed alternative dispute resolution technique prior to resorting to litigation.