Kyzentree Service Agreement
Last updated: 08 February, 2021
Welcome to Kt-Pulse.
This end user license agreement (this “Agreement”) applies to the Kt-Pulse Collector App and Desktop Software (“Kt-Pulse Software”), the Cloud Services (as defined below) and other Kt-Pulse related services provided by KYZENTREE (“Kyzentree Technologies Ltd,” “us,” “our,” or “we”) as described below (collectively, the “Kt-Pulse Services”).
By registering for an Account (as defined below) to use the Kt-Pulse Services, you agree and acknowledge that you have read all of the terms and conditions of this Agreement, you understand all of the terms and conditions of this Agreement, and you agree to be legally bound by all of the terms and conditions of this Agreement.
If you are entering into this Agreement on behalf of a company (or other entity), you represent that you are an employee or agent of such company (or other entity) and you have the authority to enter into this Agreement on behalf of such company (or other entity).
For the purpose of this Agreement, you and, if applicable, such company (or other entity) constitute “Customer” or “you”.
The “Effective Date” of this Agreement is the date you register for an Account and agree to the terms and conditions of this Agreement.
In order to access the Kt-Pulse Services, you must (i) register for an account by clicking the link that will be provided to you via email, access our web application at *.kt-pulse.com and create a secure password and (ii) either (a) provide a Payment Method (as defined in clause 4.2 below) for the applicable Subscription Fees (as defined below) and purchase of the required number of Seats (as defined below), or (b) signup for a Free Trial (as defined below) in accordance with clause 1.5. Notwithstanding anything to the contrary in this Agreement, KYZENTREE reserves the right to suspend your account and access to the Kt-Pulse Software in the event you fail to meet your payment obligations as set forth in this Agreement.
1.2 Account Information
You agree to provide accurate information and promptly update your account if it changes. You are responsible for maintaining the confidentiality of your user passwords, IDs, and other credentials and login information (collectively, “Passwords”), and you agree that KYZENTREE has no liability with respect to the use of any Passwords. You acknowledge that Passwords are personal to each user or team, and you are responsible for ensuring that each Password is used only by the applicable user or team. Team logins are permitted in two instances
- for accessing the Kt-Pulse Collector App, whereby multiple production operators within the same team need to log into the collector app to log data
- for accessing the Kt-Pulse Analytics through shared desktop computers or laptops for use in general manufacturing areas. Generic analytics accounts are limited to one per department
If you permit others to access or use your Account or you set up Team Accounts to permit users to access the Kt-Pulse Collector App or the Kt-Pulse Analytics, you are responsible for the activities of such users that occur in connection with your Account or the Team Accounts.
The Kt-Pulse Software cannot be used without the relevant license activation seats (“Seats”), which will (i) be tied to your manufacturing plant’s account, (ii) permit access to the Kt-Pulse Software for a certain number of active devices (data collectors) and users, depending on the amount of Seats purchased, as further described in the Kt-Pulse Software and in licensing emails sent to the administrator for your plant, and (iii) self-expire and lockout the Kt-Pulse Software at the end of your Subscription Period or Free Trial Period (as defined below), unless otherwise renewed.
A seat is defined as a workstation or manufacturing process to which an android or iOS device containing the Kt-Pulse app (known as a “Data Collector”) is set up with a unique link key, and whereby the workstation is activated to send and receive data to/from the data collector app.
Kyzentree acknowledges and agrees that Customers shall be permitted to deactivate an existing workstation and activate a new workstation within the plant to monitor an alternative manufacturing process. In such instances, the overall number of seats does not increase and therefore, there is no increase in the Subscription Fees.
1.4 Kt-Pulse Software Activation
In order to activate the Kt-Pulse Software, you must have an Internet connection and must log into your account when prompted to within the Kt-Pulse Software. Upon login, KYZENTREE will verify your account, Seats, and, if applicable, the payment for the applicable Subscription Period. Upon verification, KYZENTREE will provide you access to use the Kt-Pulse Software in accordance with the terms set forth in this Agreement for the duration of the applicable Subscription Period or Free Trial Period. In the event you attempt to activate additional devices beyond the amount purchased as part of your Kt-Pulse Plan or use the Kt-Pulse Software in violation of this Agreement, KYZENTREE reserves the right to deny activation.
The Kt-Pulse Software may be deactivated if one or more of the following occur:
you attempt to activate additional devices beyond the amount specified as part of your Kt-Pulse Plan or Free Trial;
periodically at an interval determined by KYZENTREE, provided that you will receive a warning before any such deactivation to pay any overdue subscription fees;
an error with the Kt-Pulse Software;
detection by the Kt-Pulse Software of your use in violation of this Agreement; or
the expiration of the applicable Subscription or Free Trial Period.
In the event of a de-activation under this clause 1.4.2, you may be required to reactivate the applicable Kt-Pulse Software following the procedure set forth in clause 1.4.1.
1.5 Free Trials
1.5.1 Free Trial Offers
Your access to the Kt-Pulse Software may start with a free trial (“Free Trial”). The Free Trial period of your access lasts for the period set forth on registration of your Account (“Free Trial Period”), and is intended to allow you to try the Kt-Pulse Services in your manufacturing environment.
1.5.2 Free Trial Eligibility
Free Trial eligibility is determined by KYZENTREE at its sole discretion and we may limit eligibility or duration to prevent Free Trial abuse. We reserve the right to revoke the Free Trial and put your Account on hold in the event that we determine that you are not eligible. We may use information such as device ID, physical address, name, or an Account email address used with an existing or recent KYZENTREE Account to determine eligibility.
1.5.3 Free Trial Scope
A free trial entitles you to two seats to test the Kt-Pulse Services within your manufacturing plant. A maximum of one trial per manufacturing plant is permitted. Hardware is sourced by the customer for logging the data (data collectors) and for displaying the analytics (monitors).
At the option of the Customer and subject to receipt of a valid purchase order, Kyzentree will source and supply the data collector hardware (tablets or iPads, gooseneck holders, screen protectors, shell casings and charging cables) for the performance of the Services on the Customer’s behalf.
The Customer shall ensure that the hardware supplied shall only be utilised for accessing the Kt-Pulse Software or other work related activities.
As a trial customer, you have access to the same online training materials as commercial customers and receive support from the Kyzentree Customer Success team to ensure that you can maximise the use of the Kt-Pulse Services during the trial period.
1.5.4 Expiration of Free Trial
Your Free Trial will automatically expire at the end of the Free Trial Period. Upon expiration, you agree to comply with the requirements of clause 5.4. If you wish to continue to use the Kt-Pulse Software, please contact email@example.com to purchase a Kt-Pulse Plan.
Without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE TRIAL ACCESS IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND. ACCORDINGLY, ANY USE OF FREE TRIAL PERIODS ARE AT CUSTOMER’S SOLE RISK. KYZENTREE may terminate Customer’s right to use the Kt-Pulse Services during any Free Trial period at any time for any reason or no reason in KYZENTREE’S sole discretion, without liability.
2 THE KT-PULSE SERVICES
2.1 Plans and Pricing
KYZENTREE provides several plans for the Kt-Pulse Services with varying lengths and fees (“Kt-Pulse Plans”). Our customer success team will discuss the Kt-Pulse plans with you and help you to choose the one that’s right for your business, prior to Account registration or during the Free Trial Period. The plan can be changed at any time, following the procedure set forth in clause 1.4.1.
2.2 Kt-Pulse Software License Grant
Subject to the terms and conditions of this Agreement and the payment obligations set forth herein, KYZENTREE hereby grants to Customer, and Customer accepts, a limited, nonexclusive, non-assignable, non-sublicensable, and non-transferable license, during the applicable Subscription or Free Trial Period, to do the following solely for Customer’s internal business purposes: (i) install the Kt-Pulse Software (in object code only) on Customer’s devices, and (ii) access and use the Kt-Pulse Software as permitted (and in the quantities permitted) under this Agreement. Customer may not modify the Kt-Pulse Software in any capacity. KYZENTREE retains the right to terminate the license upon the terms provided in clause 5 below, and for breaches of clauses 2.4 and 2.5.
2.3 Cloud Services
The Kt-Pulse Services includes access to our cloud services to facilitate sharing and collaboration of Customer Data (as defined below), as well as other services that may become available from time to time (“Cloud Services”). During the applicable Subscription or Free Trial Period, and subject to the terms and conditions of this Agreement, KYZENTREE hereby grants Customer a limited, nonexclusive, non-assignable, non-sublicensable, and non-transferable right to access and use the Cloud Services for its internal business purposes. KYZENTREE retains the right to terminate this right upon the terms provided in clause 5 below, and for breaches of clauses 2.4 and 2.5.
2.4 Grant Restrictions
Customer will use the Kt-Pulse Software and the Cloud Services
(i) only for its internal business purposes, and not for the internal purposes of any third party, and
(ii) only to the extent it is licensed hereunder.
Customer will not without KYZENTREE’s prior written consent in each instance voluntarily or involuntarily in any form or manner assign, sublicense, transfer, pledge, loan or share the Kt-Pulse Software or the Cloud Services or any rights under this Agreement to or with any other person or entity, including, without limitation, any assignment or transfer incident to Customer’s merger or consolidation with another entity, or any assignment or transfer by operation of law. Any such assignment, sublicense, transfer, pledge, loan or sharing absent KYZENTREE’s prior written consent will be void and of no force or effect and will cause the immediate termination of this Agreement. Furthermore, Customer will not publish, disclose or otherwise display in writing, electronically or otherwise any part of the Kt-Pulse Software or the Cloud Services without KYZENTREE’s prior written consent in each such instance, except for internal business purposes which are permitted hereunder, and any such publication, disclosure or display absent KYZENTREE’s prior written consent which will cause the immediate termination of this Agreement.
2.5 Use Restrictions
Customer will use the Kt-Pulse Software and the Cloud Services only in its original form, and will not permit any third party to:
reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate or create, attempt to create the source code of the Kt-Pulse Software or the Cloud Services or its structural framework (in whole or in part), or perform any process intended to determine the source code for the Kt-Pulse Software or the Cloud Services, or assist or otherwise facilitate others to do any of the foregoing;
modify, enhance or create derivative works based upon the Kt-Pulse Software or the Cloud Services (in whole or in part), including, without limitation, any derivative works based upon the database structures of the Kt-Pulse Software or the Cloud Services, or otherwise change the Kt-Pulse Software or the Cloud Services;
circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Kt-Pulse Software or the Cloud Services or the functionality of the Kt-Pulse Software or the Cloud Services;
use the Kt-Pulse Software or the Cloud Services for any purpose that is illegal in any way or that advocates illegal activity;
alter, remove or obscure any copyright or trademark notice on the Kt-Pulse Software or the Cloud Services;
make available the Kt-Pulse Software or the Cloud Services through electronic mail or the Internet;
voluntarily or involuntarily in any form or manner assign, sublicense, transfer, pledge, copy, loan, publish, rent, sell, license, distribute or share the Kt-Pulse Software or the Cloud Services or any rights under this Agreement to or with any other person or entity, including providing outsourcing or on-line services to third parties;
use the Kt-Pulse Software or the Cloud Services to develop a competing product or for any other purpose that is to KYZENTREE’s commercial disadvantage; or
access or use any portion of the Kt-Pulse Software in any manner, except for the permitted use as expressly provided in this Agreement. Customer agrees that any modification, enhancement, derivative work or other improvement to the Kt-Pulse Software or the Cloud Services developed by KYZENTREE, Customer, Customer’s employees or Customer’s independent contractors, whether with or without the consent, advice and/or support of KYZENTREE, will be the exclusive property of KYZENTREE and subject to and governed under the terms and conditions of this Agreement, and Customer hereby assigns to KYZENTREE all such rights, title and interest therein.
The Customer shall not access, store, distribute or transmit any viruses or any material during the course of its use of the Kt-Pulse Services that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
- causes damage or injury to any person or property,
and Kyzentree reserves the right, without liability to the Customer, to disable the Customer’s access to any material that breaches the provisions of this Clause.
2.6 Maintenance and Support
During the term of this Agreement, KYZENTREE will use commercially reasonable efforts to provide KYZENTREE’s then-current standard technical maintenance and support for the Kt-Pulse Software.
Kyzentree shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
planned maintenance carried out during the maintenance window of 8.00pm to 6.00am Irish time or such times as Kyzentree’s providers require, of which Kyzentree will endeavour to provide advance notice;
unscheduled maintenance performed outside Normal Business Hours, provided that Kyzentree has used reasonable endeavours to give the Customer at least 2 Normal Business Hours’ notice in advance;
unavailability due to matters detailed in the Force Majeure clause;
any non-conformance which is caused by use of the Services contrary to Kyzentree’s instructions, or modification or alteration of the Services by any party other than Kyzentree or Kyzentree’s duly authorised contractors or agents; and
delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, within the Customer plant.
Kyzentree will, as part of the Services and at no additional cost to the Customer, provide the Customer with Kyzentree’s standard customer support services during Normal Business Hours in your territory. Kyzentree may amend the Support Services Policy in its sole and absolute discretion from time to time.
Support requests may be submitted at firstname.lastname@example.org.
The Customer shall provide Kyzentree with all necessary co-operation in relation to the Agreement and all necessary access to such information as may be required by Kyzentree, in order to render the Services;
comply with all applicable laws and regulations with respect to its activities under the Agreement;
carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Kyzentree may adjust any agreed timetable or delivery schedule as reasonably necessary; and
be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Kyzentree’s data centres or any third-party data centre, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
2.7 Professional Services
Customer acknowledges and agrees that nothing in this Agreement obligates KYZENTREE to provide any Professional Services. In the event Customer wishes to receive Professional Services with respect to the Kt-Pulse Services or otherwise, the parties shall enter into a separate services agreement.
3 CUSTOMER DATA
3.1 Ownership of data
Subject to clause 3.2 below, the Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data used in conjunction with and/or entered into the Services. Kyzentree shall make the Kyzentree Data and the Customer Data available ‘as is’ and shall not be liable for any reliance placed by the Customer or any third party on the Software, Kyzentree Data or Customer Data.
3.2 Data Processing
Kyzentree will only use User Data as permitted by this Agreement, by other agreements between you and us, or as otherwise directed or authorised by you. You will protect all Data you receive through the Services, and you may not disclose or distribute any such Data, and you will only use such Data in conjunction with the Services and as permitted by this Agreement or by other agreements between you and us. Neither party may use any Personal Data to market to third parties unless it has received the express consent from a specific Customer to do so.
The Customer shall and does hereby:
permit Kyzentree to (a) anonymise and aggregate the Customer Data, (b) monitor, analyse and use such anonymised and aggregated data for purposes such as provision of statistical and market data, (c) analyse use of the Services, (d) analyse how Kyzentree might improve the Services, (e) use data from analysis of the Services to improve efficiency and service tools for managing manufacturing operations, and/or (f) use anonymised data for secondary research or performance audit purposes;
agree and confirm that all relevant third parties’ whose data are contained in the Customer Data agree, that Kyzentree may store the Customer Data within the European Economic Area;
agree that Kyzentree may access and disclose Customer Data as required by applicable law, as permitted by the Customer and as is required to provide the Services;
agree to comply with the terms of Kyzentree’s third party providers as is required to use the Services; and
herein provides Kyzentree with an irrevocable, perpetual, worldwide, royalty free license to the anonymised Customer Data in order to allow Kyzentree carry out the activities set out in clause 3.2.1 above. This clause shall survive the termination of the Agreement.
3.3 Data storage
At Kyzentree, customer trust is our top priority and we take data privacy and data security very seriously. Hosting the data on AWS gives us ownership and control over where the content is stored and secures content in transit and at rest. We also avail of AWS’s responsible and sophisticated technical and physical controls that are designed to prevent unauthorized access to or disclosure of all content.
Maintaining customer trust is an ongoing commitment. We strive to inform you of the privacy and data security policies, practices, and technologies we’ve put in place, including
We use AWS’s advanced set of access, encryption, and logging features to ensure secure access to our services is maintained.
Kyzentree stores Customer Data on AWS servers within the European Economic Area. However, data can be stored in different regions within the AWS network of servers. This can be discussed by contacting email@example.com.
Kyzentree is responsible for protecting the security of Data in our possession. We will maintain commercially reasonable administrative, technical, and physical procedures to protect User Data and Personal Data stored in our servers from unauthorised access, accidental loss, modification, or breach, and we will comply with applicable Laws and Payment Method Rules when we handle User and Personal Data.
However, no system is impenetrable. You are responsible for assessing the security requirements of your business, and selecting and implementing security procedures and controls (“Security Controls”) appropriate to mitigate your exposure to security incidents.
3.3.4 Security Assurance
AWS has developed a security assurance program that uses best practices for global privacy and data protection to ensure we operate securely within AWS, and to make the best use of our security control environment. These security protections and control processes are independently validated by multiple third-party independent assessments.
3.4 Personal Data
If Kyzentree processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and Kyzentree shall be a data processor and in any such case:
the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Kyzentree so that Kyzentree may lawfully use, process and transfer the personal data in accordance with these terms and conditions on the Customer’s behalf;
the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
Kyzentree shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
you affirm that you are now and will continue to be compliant with all applicable Laws governing the privacy, protection, and your use of Data that you provide to us or access through your use of the Services.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving party;
was in the other party’s lawful possession before the disclosure;
is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
is independently developed by the receiving party, which independent development can be shown by written evidence; or
is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body
Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Agreement.
Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Kyzentree’s Confidential Information.
Kyzentree acknowledges that the Customer Data is the Confidential Information of the Customer
4 FEES AND PAYMENT TERMS
4.1 Subscription Fees
Subscription Fees are payable, and Customer agrees to pay such fees, on a quarterly or annual basis, in advance, depending upon the term of your Kt-Pulse Plan (the “Subscription Period”). The Subscription Fees do not include taxes. KYZENTREE will require payment as per the Payment Method provided by Customer for the Subscription Fees due in advance of every Subscription Period.
4.2 Payment Methods
Unless KYZENTREE states otherwise, all payments must be made in the applicable currency listed for the Kt-Pulse Plan in your region and by direct deposit or wire transfer (“Payment Method”). You hereby (i) agree to pay KYZENTREE using the designated Payment Method in the applicable amount of the Subscription Fees for the duration of the applicable Subscription Period, and (ii) represent and warrant that you are authorized to use and have Subscription Fees charged to the Payment Method you provide to KYZENTREE. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your Account, KYZENTREE may suspend your access to the service until we have successfully received payment. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.
4.3 No Refunds
Payments are non-refundable and there are no refunds or credits for partially used Subscription Periods. Following any cancellation, however, you will continue to have access to the Kt-Pulse Services through the end of your current billing period.
4.4 Changes to the Subscription Fees
Notwithstanding any terms to the contrary in this Agreement, (i) KYZENTREE, at its sole discretion, may modify its pricing during any applicable terms, and such modifications will be effective as of the directly subsequent Subscription Period, and (ii) KYZENTREE is not obligated to issue any refunds for fees paid.
4.5 Interest and Additional Terms
Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. You will be responsible for, and will pay all sales and similar taxes on all license fees and similar fees levied upon the provision of the Kt-Pulse Services provided under this Agreement. You will indemnify and hold KYZENTREE harmless from and against any and all such taxes and related amounts levied upon the provision of the Kt-Pulse Services, and any costs associated with the collection or withholding thereof, including penalties and interest.
4.6 Free Trials
Subscription Fees are not collected for any Free Trials under this Agreement.
5 TERM, TERMINATION & EFFECTS OF TERMINATION
5.1.1 If Free Trial
If there is a Free Trial, then this Agreement commences on the Effective Date and, unless earlier terminated as set forth in this Agreement, continues for the Free Trial Period as set forth in clause 1.5.
5.1.2 If no Free Trial
If there is no Free Trial, then this Agreement commences on the Effective Date and, unless earlier terminated as set forth in this clause 5, continues through the Subscription Period selected by Customer, and thereafter, if applicable, this Agreement will automatically renew for successive periods equivalent in length to the term initially selected (each a “Renewal Subscription Period”). Customer acknowledges that it will not receive notice of a renewal date.
5.2 Termination for Convenience
Customer may terminate this Agreement at any time with notice to KYZENTREE, provided that KYZENTREE will not issue any refunds. KYZENTREE may terminate this Agreement prior to any Renewal Subscription Period with no less than 30 days’ notice to Customer or as otherwise provided for herein.
5.3 Termination for Cause
Either party may terminate this Agreement for cause if the other party breaches this Agreement and does not remedy such failure within 30 days after its receipt of written notice of such breach. Further, KYZENTREE may suspend use of the Kt-Pulse Services (or any portion thereof) without liability if KYZENTREE is required by any applicable laws to suspend the Kt-Pulse Software.
5.4 Obligations Upon Termination
Upon termination of this Agreement, (i) all rights granted to Customer hereunder will immediately cease, (ii) Customer will immediately discontinue all use of the Kt-Pulse Services, (iii) Customer will promptly uninstall and erase all copies of the Kt-Pulse Software App from the devices on which it has been installed, and remove all links to the Kt-Pulse web applications from the devices in Customer’s possession or control, (iv) upon request, Customer will certify to KYZENTREE in writing that it has completed (ii) and (iii) above, (v) KYZENTREE will immediately cease providing all services under this Agreement, and (vi) Customer will immediately pay to KYZENTREE all amounts due and payable up to the effective date of termination of this Agreement.
Notwithstanding any terms to the contrary in this Agreement, this sentence and clauses 1.3, 2.4, 2.5, 3.5, 4 and 6 to 11 will survive any termination or expiration of this Agreement.
Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by Customer to KYZENTREE with respect to the Kt-Pulse Services or KYZENTREE (collectively, “Feedback”) will be owned by KYZENTREE and constitute confidential information of KYZENTREE which may not be disclosed to any third party. KYZENTREE will be free to use, disclose, reproduce, license and otherwise distribute and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind, on Account of Intellectual Property Rights (as defined below) or otherwise.
7 OWNERSHIP AND RESERVATION OF RIGHTS
7.1 KYZENTREE IP
As between Customer and KYZENTREE, KYZENTREE owns all right, title and interest in and to the Kt-Pulse Software, the Cloud Services, and the Kt-Pulse Services (and any and all modifications to or derivative works of the Kt-Pulse Services), the Feedback and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “KYZENTREE IP”). KYZENTREE reserves all rights not expressly granted in this Agreement, and no licenses are granted by KYZENTREE to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. For the purpose of this Agreement, “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.
7.2 Customer IP
As between Customer and KYZENTREE, Customer owns all right, title and interest in and to the Customer Data (and any and all modifications to or derivative works of the Customer Data, excluding any KYZENTREE IP) and any and all Intellectual Property Rights embodied in the foregoing (collectively, the “Customer IP”).
7.3 Challenge; Registration
Customer agrees never to challenge or contest KYZENTREE’s or its licensors’ ownership of the KYZENTREE IP. Customer shall not attempt to register any copyrights, trademarks or service marks, or apply for any patent or other intellectual property protection for the KYZENTREE IP.
8.1 Mutual Warranties
Each party represents and warrants to the other party that: (i) such party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; and (iii) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound.
8.2 Disclaimer of Warranties
THE KT-PULSE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, KYZENTREE DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THIS AGREEMENT, THE KYZENTREE IP, AND ANY THIRD-PARTY SERVICES WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT KYZENTREE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE.
The Customer shall defend, indemnify and hold harmless Kyzentree against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of Kyzentree’s Services and/or Documentation, provided that:
the Customer is given prompt notice of any such claim;
Kyzentree provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
the Customer is given sole authority to defend or settle the claim.
Kyzentree shall, subject to clause 9.5, defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality (in each case, enforceable in the Territory) and shall indemnify the Customer for any amounts awarded against the Customer in judgement or settlement of such claims, provided that:
Kyzentree is given prompt notice of any such claim;
the Customer provides reasonable co-operation to Kyzentree in the defence and settlement of such claim, at Kyzentree’s expense; and
Kyzentree is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, Kyzentree may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall Kyzentree, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
a modification of the Services or Documentation by anyone other than Kyzentree; or
the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Kyzentree; or
the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Kyzentree or any appropriate authority.
The foregoing states the Customer’s sole and exclusive rights and remedies, and Kyzentree’s entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
10 LIMITATION OF LIABILITY
In no event will Kyzentree be liable to customer or any third party for any incidental, special, indirect, consequential, exemplary or punitive damages whatsoever, arising out of or related to this agreement, the Kyzentree IP or any third party services, regardless of the theory of liability (contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory), even if Kyzentree has been advised of the possibility of such damages.
In no event will Kyzentree’s total liability arising out of or related to this agreement, the Kyzentree IP or any third party services exceed the fees paid by customer to Kyzentree for the subscription period during which the damages initially arose. These limitations on our liability to you will apply regardless of the legal theory on which your claim is based, including contract, tort (including negligence), strict liability, or any other theory or basis.
Notwithstanding any terms to the contrary in this agreement, Kyzentree will not be liable for any disclosure of, unauthorised use of and/or unauthorised access to any information, data or customer data unless such disclosure, unauthorised use of and/or unauthorised access solely and directly results from Kyzentree’s gross negligence.
Multiple claims will not expand this limitation. The parties agree that the foregoing limitations represent a reasonable allocation of risk under this agreement.
Kyzentree is not liable, and deny responsibility for, any damages, harm, or losses to you arising from or relating to hacking, tampering, or other unauthorised access or use of the Services, your Kt-Pulse Account, or Data, or your failure to use or implement anti-fraud measures, Security Controls, or any other data security measure. Kyzentree further deny responsibility for all liability and damages to you or others caused by (a) your access or use of the Services inconsistent with the Documentation; (b) any unauthorised access of servers, infrastructure, or Data used in connection with the Services; (c) interruptions to or cessation of the Services; (d) any bugs, viruses, or other harmful code that may be transmitted to or through the Services; (e) any errors, inaccuracies, omissions, or losses in or to any Data provided to us; (f) third-party content provided by you; or (g) the defamatory, offensive, or illegal conduct of others.
The Customer assumes sole responsibility for results obtained from the use of the Kt-Pulse Services and Documentation by the Customer, and for conclusions drawn from such use. Kyzentree shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Kyzentree by the Customer in connection with the Services, or any actions taken by Kyzentree at the Customer’s direction
The Customer acknowledges that Kyzentree shall have no liability for the Kyzentree Data, or content on or in the Services, and the Customer shall defend, indemnify and hold harmless Kyzentree against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation, court costs and reasonable legal fees) arising from any claims by Customer employees or other third parties due in whole or in part to the reliance by the Customer on the Kyzentree Data, Services, Documentation or their content.
11.1 Entire Agreement
This Agreement and all policies and procedures that are incorporated by reference constitute the entire agreement between you and Kyzentree for provision and use of the Services. Except where expressly stated otherwise in a writing executed between you and Kyzentree, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services. This Agreement sets forth your exclusive remedies with respect to the Services. If any provision or portion of this Agreement is held to be invalid or unenforceable under Law, then it will be reformed and interpreted to accomplish the objectives of such provision to the greatest extent possible, and all remaining provisions will continue in full force and effect.
11.2 Right to Amend
We have the right to change or add to the terms of this Agreement at any time, solely with prospective effect, and to change, delete, discontinue, or impose conditions on use of the Services by posting such changes on our website or any other website we maintain or own. We will provide you with Notice of any changes through email or through other reasonable means. If you are an existing Kt-Pulse user, the changes will come into effect on the date we specify in the Notice, and your use of the Services or Data after a change has taken effect, constitutes your acceptance of the terms of the modified Agreement. You can access a copy of the current terms of this Agreement on our website at any time. You can find out when this Agreement was last changed by checking the “Last updated” date at the top of the Agreement.
11.3 Governing Law and Dispute Resolution
11.3.1 Binding Arbitration
Any dispute, controversy or claim arising out of or relating to this contract, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator. The place of the arbitration will be Ireland. The language to be used in the arbitral proceedings will be English. Judgement upon the award rendered by the arbitrator may be entered by any court having jurisdiction.
This Agreement and the rights of the parties hereunder shall be governed and construed in accordance with the laws of Ireland, exclusive of conflict or choice of law rules. Nothing in this clause will preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Either party may commence arbitration by providing to JAMS and the other party to the dispute a written demand for arbitration, setting forth the subject of the dispute and the relief requested.
11.3.2 Service of Process
Each party hereby irrevocably and unconditionally consents to service of process through personal service at their corporate headquarters or manufacturing plant address. Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by Law.
The parties will maintain the confidential nature of the arbitration proceeding, the hearing and the Award, except (i) as may be necessary to prepare for or conduct the arbitration hearing on the merits, (ii) in connection with a court application as contemplated above for a preliminary remedy, or confirmation of an Award or its enforcement, (iii) our disclosure of the Award in confidential settlement negotiations, or (iv) as otherwise required by applicable Laws. The parties, witnesses, and arbitrator will treat as confidential and will not disclose to any third person (other than witnesses or experts) any documentary or other evidence produced in any arbitration hereunder, except as required by Law or except if such evidence was obtained from the public domain or was otherwise obtained independently from the arbitration.
11.4 Independent Contractors
Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
Customer may not assign, delegate or transfer (by sale, merger, operation of law or otherwise) this Agreement or any right, title, interest or obligation hereunder without the prior written consent of KYZENTREE. Any attempted or purported assignment, delegation or transfer in violation of the foregoing will be null and void and without effect. KYZENTREE may assign this Agreement without Customer’s prior written consent. This Agreement will be binding and inure to the benefit of such assignees, transferees and other successors in interest of the parties, in the event of an assignment or other transfer made consistent with the provisions of this Agreement.
11.6 Force Majeure
Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable, in whole or in part, to any cause beyond its reasonable control, including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of Kt-Pulse by any service providers being used by KYZENTREE to host the Kt-Pulse or to link its servers to the Internet, labour disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (each a “Force Majeure Event”).
11.7 Electronic Communications
KYZENTREE may choose to electronically deliver all communications with Customer, which may include email to the email address Customer provides to KYZENTREE. KYZENTREE’s electronic communications to Customer may transmit or convey information about action taken on Customer’s request, portions of Customer’s request that may be incomplete or require additional explanation, any notices required under applicable law, and any other notices. Customer agrees to do business electronically with KYZENTREE and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.
If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision or portion will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
11.9 Questions or Issues
If you have any questions or issues regarding the use of Kt-Pulse, please send an email to firstname.lastname@example.org.
The parties hereby acknowledge that they have required this Agreement and all related documents to be in the English language.