Kapta Terms and Conditions of Service
Last updated: 14 March 2018
BEFORE USING KAPTA’S ONLINE SERVICE (AS DEFINED BELOW), PLEASE READ THESE TERMS AND CONDITIONS OF SERVICE (THESE “TERMS”). “CUSTOMER” MEANS THE PARTY IDENTIFIED AS THE CUSTOMER ON AN APPLICABLE ORDER FORM (WHICH MAY BE AN ONLINE OR PAPER ORDER FORM) (“ORDER FORM”) AND INCLUDES ALL OF CUSTOMER’S AUTHORIZED USERS OF THE ONLINE SERVICE. THESE TERMS ARE INCORPORATED BY REFERENCE INTO EACH ORDER FORM EXECUTED BY CUSTOMER AND KAPTA, PURSUANT TO WHICH CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE THE ONLINE SERVICE. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND KAPTA (THE “AGREEMENT”). THE AGREEMENT IS EFFECTIVE AS OF THE EFFECTIVE DATE STATED IN THE ORDER FORM, or, if later or if none is provided in the Order Form, the date on which User login access is issued to Customer’s users.
1. Scope of Subscription
a) Access and Availability. Subject to Customer’s compliance with these Terms, Kapta agrees (i) that it will make the Online Service available to Customer’s employees, representatives, consultants, contractors and/or agents who have been provided log in credentials for the Online Service by Customer (the “Users”); and (ii) grants Customer a limited, non-exclusive and non-transferable right for the number of Users for which Customer has paid applicable fees to access and use the Online Service, in each case during the Subscription Term and solely for Customer’s internal business purposes (the “Subscription”). Customer assumes full responsibility for its Users’ compliance with these Terms. The Subscription is not dependent on any future functionality, upgrades or features (or any public comments or other disclosure made by or on behalf of Kapta with respect thereto). As used herein, “Online Service” means the online website application provided by Kapta via https://www.kapta.com (or at such other URL as Kapta may designate from time to time), including interactive discussion areas, accounts, profiles and other related components thereof, on an individual and collective basis.
b) Subscription Term. Customer’s initial subscription term for the Online Service shall commence on the start date stated in the Order Form, or, if later or if none is provided in the Order Form, the day User login names and passwords are issued to Customer to access the Online Service under the Order Form (the “Subscription Start Date”). The Subscription will continue for the period specified in the Order Form (the “Initial Subscription Term”) and will automatically extend for additional periods of time equal to the length of the Initial Subscription Term (each, a “Renewal Term”) at Kapta’s then-current rates, unless either party gives the other party written notice of nonrenewal at least 30 days’ prior to the end of the Initial Subscription Term or Renewal Term, as the case may be. Nonrenewal notices must be delivered via e-mail to firstname.lastname@example.org. The Initial Subscription Term plus all Renewal Terms are collectively referred to herein as the “Subscription Term”. “Paid Subscription Term” is the period of time during a Subscription Term that Customer has paid for its Subscription.
c) Customer Affiliates. Customer’s Affiliates may purchase Subscriptions to the Online Service under separate Order Forms, provided that if any Affiliates are granted any right to access or use the Online Service hereunder, Customer will remain fully responsible and liable for all acts and omissions of such Affiliates and will cause such Affiliates to comply with the provisions of these Terms. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party.
d) Changes. If Customer desires to change the version of the Online Service that Customer has access to, Customer and Kapta will complete a new Order Form.
e) Service Levels. During any Paid Subscription Term, Kapta will provide the service levels are set forth in Appendix A.
f) Additional Services. Kapta will provide any implementation, configuration, training or other professional services described in the Order Form (if any) in consideration for the associated fees described in the Order Form and in accordance with the terms and conditions in Appendix B.
g) Exclusions for Trials. Notwithstanding anything contained in this Agreement to the contrary, any and all beta versions of, and no-cost subscriptions to, the Online Service (e.g., a trial use) come without warranty of any kind and are used by Customer solely at its own risk and responsibility. Customer acknowledges that that the risks and assumptions undertaken by Kapta pursuant to this Agreement are only in consideration for the payment of subscription fees.
2. Customer Content & Use
a) Customer Content; Upload Restrictions. As between Kapta and Customer, Customer will retain all right, title and interest in and to all content, information and other materials in any format or media uploaded by Customer and its Users to the Online Service, as well as all information generated by Users using of the Online Service (collectively, “Customer Content”). Customer is solely responsible and liable for ensuring that it has all rights, permissions and licenses in the Customer Content necessary for Customer to provide it to Kapta and use it in association with the Online Service. Customer hereby grants to Kapta during the Subscription Term a non-exclusive, transferable, worldwide right to use the Customer Content solely as reasonably needed to provide Customer the Online Service and any associated services. Kapta will not be responsible or liable for the content of Customer Content in any respect, including the completeness, quality, accuracy or suitability of the Customer Content.
b) User Compliance. Customer warrants and covenants that its and its Users’ use and activity with respect to the Online Service and Customer Data will comply with applicable laws and regulations and with the terms of these Terms.
c) Restrictions. Without limiting its obligations under these Terms, in using the Online Service Customer shall not:
i) tamper with or circumvent the security of the Online Service or access accounts or data not associated with Customer;
ii) attempt to probe, scan or test the vulnerability of the Online Service, breach the security or authentication measures of the Online Service or attempt to render any part of the Online Service unusable;
iii) share, distribute, license, sell or otherwise commercially exploit the Online Service (including access thereto) for the benefit of a third party or other unauthorized user, or for any benefit not contemplated by these Terms;
iv) use or access the Online Service to develop a product or service that is competitive with Kapta’s products or services or otherwise copy any ideas, features, functions or graphics of the Online Service;
v) reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Online Service, or modify or create a derivative work of the Online Service or any related documentation;
vi) provide false, incomplete, inaccurate or outdated information on any registration forms, accounts or profiles;
vii) remove or obscure any product identification, proprietary, copyright or other notices contained in the Online Service or related documentation; or
viii) disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Online Service (including benchmark tests).
d) Communications. Customer will be responsible and liable for the content of all communications and content uploaded into or sent to any party using the Online Service (including interactive areas such as discussion boards, instant messaging, etc.). Customer will not use the Online Service to communicate any message or material that (i) is libelous, harmful to minors, abusive, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) could give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law.
e) Suspension. In the event of any breach or threatened breach of these Terms by Customer or any Users (including non-payment of fees), without limiting Kapta’s other rights and remedies, Kapta may immediately suspend Customer’s access to the Online Service until the breach is cured or Kapta reasonably believes there is no longer a threatened breach.
f) Credentials. Kapta shall provide Customer (or Customer will choose) a unique username and password to enable Customer to access the Online Service pursuant to this Agreement. Customer acknowledges and agrees that only the authorized number of users, if applicable, are entitled to access the Online Service with the username and password provided to Customer. Customer is responsible for maintaining the confidentiality of all Customer usernames and passwords, and is solely responsible for all activities that occur under these usernames. Customer agrees (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Kapta promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Kapta reserves the right to terminate any username and password, which Kapta reasonably determines may have been used by an unauthorized third party or an individual other than the Customer to whom such username and password was originally assigned.
g) Security and Data Protection. During any Paid Subscription Term, Kapta will use commercially reasonable physical, technical and procedural measures to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Kapta, including the placement of the Online Service at reputable third-party Internet service providers and co-location facilities. Kapta’s security measures include those described in its security overview document located at: http://www.kapta.com/security-statement/. During any Paid Subscription Term, to the extent that Kapta processes any Personal Data (as defined in the DPA) on Customer’s behalf in the provision of the Online Service, the terms of the Data Processing Addendum at https://www.kapta.com/data-processing-addendum/ (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
a) Scope. “Confidential Information” means all information of a party (“Disclosing party“) disclosed or made available to the other party (“Receiving party“) that (i) is clearly marked or identified as such at the time of disclosure or within a reasonable time thereafter; or (ii) should be reasonably known by the Receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Kapta’s Confidential Information specifically includes all Online Service software code and pricing terms.
b) Restrictions. The Receiving party will: (i) not use the Disclosing party’s Confidential Information for any purpose other than exercising its rights or performing obligations under these Terms; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.
c) Exceptions. If the Receiving party is required by applicable law or court order to make any disclosure of such Confidential Information, to the extent permitted by applicable law, it will first give written notice of such requirement to the Disclosing party, and permit the Disclosing party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing party in seeking to obtain such protection. Further, this Section 3 will not apply to information which the Receiving party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving party; (iii) is rightfully obtained by the Receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving party who had no access to such information.
d) Equitable Relief. The Receiving party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving party the Disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
4. Fees; Interest; Taxes
Customer will pay to Kapta all of the fees specified in an Order Form, in U.S. currency and via check, bank transfer, debit card or credit card, except as otherwise may be agreed in the Order Form. Customer hereby authorizes Kapta to charge the fees to Customer’s provided payment card, or any successor payment card. Except as expressly set forth to the contrary in these Terms, all payment obligations are non-cancellable and all amounts paid Kapta are non-refundable. If Fees are not pre-paid with a credit card, Fees will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, all fees are due within 30 days from the invoice date. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Kapta. Customer will not withhold any Taxes from any amounts due Kapta. If Kapta pays any such taxes on behalf of Customer, Customer will reimburse Kapta for such payments.
5. Proprietary Rights
a) This Agreement is not an agreement for the sale or license of any software or other intellectual property right. Customer acknowledges that the Online Service contains copyrighted and proprietary products and materials. Kapta (and Kapta’s licensors, if any) solely and exclusively retain all right, title and interest in and to the Online Service and related support, documentation and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Kapta IP”). Except for the Subscription granted hereunder, Customer has no right, title or interest in, and Kapta reserves all rights to, the Kapta IP. Notwithstanding the foregoing and with respect only to text, photographs, images, illustrations, video clips, audio clips and graphics (the “Material”) on the Kapta website or the Online Service, Customer may make a single print copy of any Materials for personal, non-commercial use only, provided that Customer does not remove nor cause to be removed any copyright, trademarks, or other proprietary notices or visual marks or logos from the Material. Customer may not archive or retain any of the Materials accessed on this Web site without our express written permission. All requests for archiving, republication or retention of any part of the Materials must be in writing to Kapta and must clearly state the purpose and manner in which the Material will be used.
b) Third-Party Tools and Marketing. Kapta may provide Customer or Users with access to third-party tools or other applications which Kapta neither monitors nor has any control or input. Customer acknowledges and agrees that Kapta provides access to such tools on a strictly ”as-is” and “as-available” basis without any representations, warranties or conditions of any kind and without any endorsement as to the value of functionality of such tools. Such tools may be subject to their own set of terms and conditions which, if accepted by Customer, constitute a separate agreement between Customer and the third party only. Kapta shall have no liability whatsoever arising from or relating to Customer’s use of optional third-party tools. Additionally, Kapta may, from time to time, run advertisements and promotions from third parties on the Kapta website or Online Service. Customer business dealings or correspondence with, or participation in promotions of, advertisers other than Kapta, and any terms, conditions, warranties or representations associated with such dealings, are solely between Customer and such third party. Kapta is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third-party advertisers on the Kapta site or Online Service.
6. Online Service Modification
Kapta reserves the right to modify the Online Service or features at any time and at its discretion.
a) Termination. Unless otherwise stated in the Order Form, these Terms may only be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of these Terms, which breach, if curable, is uncured within 30 days after receipt of notice of such breach; (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (C) immediately in the event of a material breach by the other party of Section 2(c)-(d) of these Terms; or (ii) as expressly allowed elsewhere in these Terms.
b) Outstanding Fees. Customer will pay all fees owed to Kapta that have accrued up until the effective date of termination of these Terms in accordance with these Terms. If Customer terminates these Terms pursuant to Section 7(a)(i)(A), Kapta will refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination.
c) Effect of Termination. Upon any termination or expiration of these Terms, Customer will immediately cease all use of and access to the Online Service and delete (or, at Kapta’s request, return) all related documentation, passwords and access codes and any other Kapta Confidential Information in its possession. Kapta will have no liability for any suspension or termination of Customer’s access to the Online Service, or any termination of these Terms, provided that it is conducted in accordance with the terms of these Terms. Upon written request by Customer made within 30 days after termination, Kapta will provide Customer with temporary access to the Online Service solely for Customer to retrieve its Customer Content, but not any other purpose. After such 30-day period, Kapta will have no obligation to maintain or provide access to such Customer data or Customer Content and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such Customer data and Customer Content in its possession or control. Sections 3, 4, 5, 7, 8d and 9, 10, and 11 of these Terms will survive any termination or expiration of these Terms.
a) Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of these Terms (including these Terms).
b) Functionality. Kapta warrants during any Paid Subscription Term that the Online Service will operate in substantial conformity with the then-current version of the applicable product documentation provided by Kapta. As its sole obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty, Kapta shall use reasonable efforts to correct any error in the operation of the Online Service of which Customer notifies Kapta within 30 days after the occurrence of such breach and, if Kapta cannot correct such error, then Customer may terminate these Terms upon thirty (30) days’ notice to Kapta. Kapta does not warrant Internet access or connectivity or that the Online Service will operate on any particular computer, table or mobile device.
c) Disclaimer. EXCEPT FOR THE WARRANTIES CONTAINED IN THIS SECTION 8 OR IN APPENDIX B (IF APPLICABLE), (I) THE ONLINE SERVICE, SUBSCRIPTION AND ALL OTHER KAPTA PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, AND (II) KAPTA, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN THIS SECTION ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. KAPTA WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS.
9. Limitations of Liability
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR KAPTA’S INDEMNIFICATION OBLIGATIONS IN SECTION 11, IN NO EVENT WILL KAPTA’S TOTAL, CUMULATIVE LIABILITY RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, EXCEED THE TOTAL FEES PAID BY THE CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE ONLINE SERVICE UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT OR ACT GIVING RISE TO ANY LIABILITY IN CONNECTION WITH THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS SECTION 9 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
10. Mutual Indemnification
a) Kapta Indemnification. Kapta will defend Customer and its Affiliates (“Customer Indemnitees”) against claims, demands, suits or proceedings made or brought by a third party against a Customer Indemnitee alleging that the Online Service as delivered infringes the intellectual property rights of such third party (“Customer Claim”) and Kapta will indemnify and hold the Customer Indemnitees harmless from and against any loss, liability, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses”) attributable to such Customer Claim. Notwithstanding the foregoing, if Kapta reasonably believes that the Online Service or Customer’s use of any portion of the Online Service is likely to be enjoined by reason of a Customer Claim or other violation or misappropriation of any third party intellectual property rights, then Kapta may, at its expense and in its sole discretion: (i) procure for Customer the right to continue using the Online Service; or (ii) replace or modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such replacement or modification does not adversely affect the functional capabilities of the Online Service. If, in Kapta’s opinion, (i) and (ii) above are commercially impracticable, Kapta may, in its sole discretion, terminate these Terms and refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Kapta will not apply: (1) if the Online Service is modified by any party other than Kapta, but solely to the extent the alleged infringement is caused by such modification; (2) if the Online Service is combined with other non-Kapta products, applications, or processes not authorized by Kapta, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Online Service; (4) to any third party deliverables or components contained within the Online Service that are not provided by Kapta; or (5) to the extent the claim is based on infringement by Customer Content. THIS SECTION 10(a) SETS FORTH KAPTA’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
b) Customer Indemnification. Customer will defend Kapta and its Affiliates (“Kapta Indemnitees”) against claims, demands, suits or proceedings made or brought by a third party against a Kapta Indemnitee based on, arising from, or related to (i) Customer’s communications with any third party through the Online Service, or (ii) Customer Content (as delivered by Customer) (collectively, a “Kapta Claim”) and Customer will indemnify and hold the Kapta Indemnitees harmless from and against any Losses attributable to such Kapta Claim.
c) Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole responsibility for and control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
11. General Provisions
a) Relationship of Customer and Kapta. The parties to these Terms are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
b) Modifications and Waiver. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
c) Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party, except that either party may assign or transfer these Terms upon a change of control of a party, a sale of all or substantially all assets of that party, or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by all terms and conditions of these Terms.
d) Governing Law & Venue. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to these Terms, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the Colorado USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state courts in Denver County and the federal courts in the City of Denver, USA.
e) Arbitration. Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved by the parties, shall be finally settled by arbitration in Denver, Colorado, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such rules. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive or other equitable relief without recourse to arbitration.
f) Notices. Any notices under these Terms will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Kapta will be sent to the address for Kapta set forth in the Order Form and addressed to the General Counsel. Notices to Customer will be sent to the address for Customer set forth in the Order Form and addressed to Customer’s signatory unless otherwise designated by Customer.
g) Severability. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from these Terms, and all other provisions of these Terms will remain in full force and effect.
h) Publicity. Customer grants Kapta a limited and revocable license and right to use its name and logo on customer lists and related advertising materials in any commercially reasonable manner.
i) Counterparts/Electronic Signatures. These Terms will be deemed executed upon mutual execution of the Order Form, which may be executed and delivered by email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The parties consent to electronic signatures for the purpose of executing these Terms by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if these Terms had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in these Terms.
j) Force Majeure. Neither party to these Terms shall be considered in breach of such party’s obligations hereunder to the extent that performance or the need for performance is delayed or prevented by an act of God or a public enemy, fire, flood, area-wide strike, freight embargo, unusually severe weather, or similar type of circumstance beyond such party’s reasonable control; provided that the party claiming force majeure shall, within 10 days from the beginning of such event, give written notice to the other party of the fact of the event and its probable effect on performance. A force majeure event shall not be a basis for a claim for the offsetting or discounting of fees due or for free Online Service use, and each party shall bear such party’s own costs and expenses associated with or caused by such an event. The party claiming force majeure shall take reasonable measures to mitigate the potential impact of the force majeure event on performance of obligations created by these Terms.
k) Subcontractors. Kapta may use the services of subcontractors for the provision of any Online Service and performance of any services under these Terms; provided, however, Kapta will be responsible for each subcontractor’s performance of services under these Terms and for each subcontractor’s compliance with the terms and conditions of these Terms.
l) Entire Agreement; Precedence; Interpretation. These Terms, together with the Order Form and all schedules, exhibits or other such documents attached hereto or incorporated herein by reference, constitute the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Online Service described in the Order Form, and supersedes all prior agreements and discussions with respect thereto (including prior versions of these Terms). Kapta hereby rejects any different or additional terms of a Customer purchase order or other non-Kapta ordering document, and no terms included in any Customer purchase order or other non-Kapta ordering document will apply to the Customer’s Subscription or use of the Online Service. In the event of any contradiction, discrepancy, ambiguity, or inconsistency between the aforementioned contract documents, the following order of precedent shall apply: (1) the Order Form; (2) any Statement of Work, as per Appendix B; (3) Appendixes A-B; then (4) these Terms. Headings contained in these Terms are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of these Terms. For purposes hereof, “including” means “including without limitation”.
Appendix A: KAPTA SERVICE LEVEL AGREEMENT (SLA)
1. Help Desk
“Support Incident” means (i) a basic question related to the use or configuration of the Online Service where the use or configuration is consistent with guidance in the documentation, (ii) a reproducible non-conformity in the Online Service causing the Online Service not to operate in substantial conformance with the applicable then-current documentation. Support Incidents do not include issues or support related to or arising from third party systems, products, software, or services, or Customer’s network, hardware, content, or systems.
If Customer has paid Kapta all applicable fees due, Kapta will provide technical assistance and basic troubleshooting for Support Incidents to Customer’s Administrator(s) during Business Hours (defined below) in the English language. To receive support, Customer must email support [at] kapta [dot] com as listed on the Kapta Support page.
- Email Support: Business Hours 8×5 excluding Holidays (9am-5pm MST)
- Telephone Support: Business Hours 8×5 excluding Holidays (9am-5pm MST)
- Knowledge Base Access: 24×7
- Target Response Time: 48hr initial response time
Kapta will use best efforts to respond to Customer support requests in accordance with the following target response times’ Priority Level:
High Priority: Online Service is not accessible or operational for all Users. Online Service is accessible but a material system component is not available to all Users.
- Maximum time to initial contact: 30 minutes (2 hours if between 8:00 PM and 8:00 AM MST)
- Case Update Frequency: Every 2 hours to case closure
Medium Priority: Online Service is accessible; however, individual transactions are not functioning in accordance with the Documentation for all Users.
- Maximum time to initial contact: 24 hours
- Case Update Frequency: At least one case update per business day
Low Priority: Requests for systems maintenance or administration tasks.
- Maximum time to initial contact: 48 hours
- Case Update Frequency: At least one case update every two weeks
2. Online Service Availability
Kapta will use best efforts to ensure that the Kapta Online Service will be available 24 hours per day, 7 days per week, excluding any scheduled maintenance as described below.
Non-compliance with Online Service Availability
Please reference the following table (Reporting Period = calendar month) which details the credit available to Customer in the event the Online Service availability falls below the indicated service levels:
Online Service Availability Credits
- Less than 99.5% in one Reporting Period: 5% of 1/12 the annual subscription fee
- Less than 97% in one Reporting Period: 15% of 1/12 the annual subscription fee
Additionally, if the Online Service availability falls below 95% for three (3) consecutive Reporting Periods, Customer shall have the right to terminate these Terms by delivering Kapta written notice within ten (10) days of the end of such three (3) month period or Customer shall be deemed to have waived its termination right with respect to that particular three (3) month period.
Calculation of Online Service Availability
Online Service Availability = (Total Hours in Reporting Period – Unplanned Downtime –Scheduled Maintenance – Excluded Downtime) / (Total Hours in Reporting Period – Scheduled Maintenance – Excluded Downtime* X 100%.
“Scheduled Maintenance” means any period of time during which the Online Service is unavailable due to Kapta’s planned maintenance and support of the Online Service for which Kapta gives Customer at least 24 hours prior notice. Except for urgent circumstances (e.g., a system failure or security threat), Scheduled Maintenance may occur from 10:00PM Friday through 4:00 AM Monday, Mountain Time.
“Unplanned Downtime” means any time the Online Service is not available because of an event or circumstance other than Scheduled Maintenance or Excluded Downtime.
“Excluded Downtime” means the following: (i) unavailability caused by circumstances beyond Kapta’s reasonable control, including, without limitation, acts of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Kapta employees), or any other force majeure event or factors; (ii) any problems resulting from Customer combining or merging the Online Service with any hardware or software not supplied by Kapta or not identified by Kapta in writing as compatible with the Online Service; (iii) interruptions or delays in providing the service resulting from telecommunications or Internet service provider failures outside of Kapta’s datacenter as measured by Amazon Kapta Services (a third party website availability monitoring provider); (v) any interruption or unavailability resulting from Customer’s use of the Online Service in an unauthorized or unlawful manner or any interruption resulting from the misuse, improper use, alteration, or damage of the Online Service; (vi) any problems caused by modifications in any version of the Online Service not made or authorized by Kapta in writing; and (vii) any problems resulting from Customer’s or any third party’s acts, errors or omissions or any systems not provided by Kapta.
Request for Credit
Any Customer request for a credit that Customer is entitled to under this SLA may only be made on a calendar monthly basis and must be submitted in writing within ten (10) days after the end of the relevant calendar month or shall be deemed to have been waived by Customer. For those periods at the end of a Subscription Term that do not coincide with the end of a calendar month, Customer must make a claim for a credit within ten (10) days after the expiration of the Subscription Term or the claim for credit shall be deemed to have been waived by Customer. The total of all credits applicable to or accruing in any given Reporting Period shall not exceed 15% of the pro-rated Subscription fees paid or payable to Kapta by Customer for the Reporting Period.
The right to a credit and/or the right to terminate these Terms described in this Appendix shall be Kapta’s sole obligation and the sole and exclusive remedy available to Customer in the event of unavailability of the Kapta Online Service or any failure to meet the service levels described in this Appendix, and, under no circumstance, shall the unavailability of the Online Service be deemed a default or breach under these Terms or this Service Level Agreement.
All credit requests will be verified against Kapta’s system records. Upon request, Kapta will make available to Customer a monthly record of the Online Service availability.
Appendix B: Professional Services Terms
Capitalized terms set forth in this Appendix but not defined in the Appendix have the meaning given elsewhere in these Terms.
1. Statements of Work. All services to be performed under an Order Form shall be described in either an Order Form or a separate written, mutually agreed to statement of work signed by authorized representatives of both parties (each a “SOW”), each of which is expressly made subject to the terms and conditions of these Terms. Customer agrees to retain Kapta to perform the consulting services described in each SOW (the “Services”), and Kapta agrees to perform the Services on the terms and subject to the conditions and assumptions set forth in these Terms. Each SOW should contain descriptions of the Services and a description of any Deliverables to be provided by Kapta, Kapta’s compensation, and any additional terms and conditions the parties deem appropriate. Customer and Kapta expressly acknowledge and agree that any schedules or timelines shall not be considered firm or fixed performance dates, are only to be regarded as estimated beginning and completion dates for the tasks and activities to be performed hereunder and are expected to be revised during the term of any engagement. Kapta agrees to use diligent efforts to meet schedules. Customer acknowledges that Kapta limits the amount of time Kapta’s personnel spend on out of town travel, and such limits may impact the weekly schedules of a particular engagement. All Services and Deliverables are deemed accepted by Customer upon completion or delivery and are warranted as described below. Service hours purchased by Customer are payable as set forth above in these Terms and expire as set forth in the SOW, but in any case no longer than 180 days from the date of purchase.
2. Changes. Each party may request changes that affect the scope or duration of the Services relating to any SOW. Neither party shall be bound by any change requested by the other party, until such change has been memorialized in writing and signed (or otherwise agreed to in writing, including e-mail) by authorized representatives of each party (“Change Order”). Each Change Order will be subject to the terms and conditions of these Terms.
3. Location and Access. Kapta may perform the Services at Customer’s premises, Kapta’s premises or such other premises that Customer and Kapta may deem appropriate. The SOW may describe the location where Kapta will perform Services. Customer will permit Kapta to have reasonable and safe access to Customer’s premises, personnel and computer equipment for the purposes of performing the Services at Customer’s premises.
4. Customer Assistance. Customer shall provide Kapta with such resources, information, cooperation, and assistance as Kapta may reasonably request in connection with the performance of the Services. Without limiting the generality of the foregoing, in the event the Services are provided on Customer’s premises, Customer shall provide safe and adequate space, power, network connections, and other resources as reasonably requested by Kapta, whether requested during regular business hours or otherwise. Customer acknowledges and agrees that Kapta’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Customer of the information, resources and assistance requested. Kapta shall have no liability for deficiencies in the Services or deliverables, or failure to meet any Schedule, resulting from the acts or omissions of Customer, its agents or employees or performance of the Services in accordance with Customer’s instructions.
5. Customer Information. Customer acknowledges and agrees that Kapta may, in performing its obligations pursuant to these Terms, be dependent upon or use data, material, and other information furnished by Customer without any independent investigation or verification thereof, and that Kapta shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Kapta, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of the Customer and Kapta shall be entitled to rely on all such decisions of Customer.
6. Non-solicitation. Both parties agree that during the term of these Terms and for a period of 12 months thereafter, neither party shall solicit, negotiate with or offer employment to (whether as an employee, officer, director, partner, consultant or otherwise), directly or indirectly, either party’s present or former personnel, with whom they have either had contact or been referred to during the term of these Terms, without first notifying an authorized designee of the other party of such intent in writing. Due to the scarcity of human resources that possess the skills and experience necessary to perform services on behalf of Kapta, Customer acknowledges that Kapta’s damages and losses resulting from any breach of this Section f would be extremely difficult to fix in an actual and accurate amount. Therefore, it is further agreed that if Customer breaches this Section f by hiring any Kapta personnel (whether as an employee, officer, director, partner, consultant or otherwise), Customer will pay a fee equal to one hundred percent (100%) of the projected one-year annualized compensation for the person or persons hired as liquidated damages. This fee would be payable immediately upon acceptance of hire.
7. Ownership. “Kapta Reserved Technology” means any ideas, concepts, know-how, knowledge, techniques, tools, approaches, methodologies, templates, operating instructions, standardized features, other technology, or any intellectual property rights created, developed, owned or licensed by Kapta (i) prior to the Effective Date of these Terms or (ii) during the term of these Terms but outside the scope of these Terms and any SOW or (iii) during the term of these Terms that are generally applicable and not Customer-specific. Other than Kapta Reserved Technology, all work product that Kapta creates specifically for Customer and is identified as Customer property under the applicable SOW (the “Deliverables”), and all patents, copyrights, trade secrets or other proprietary rights in or to the Deliverables are and will be the sole and exclusive property of Customer, and Kapta hereby assigns ownership of Deliverables to Customer. Notwithstanding the foregoing, Kapta shall own all worldwide right, title and interest in and to the intellectual property rights embodied in the Kapta Reserved Technology, whether or not such Kapta Reserved Technology is incorporated into any Customer Deliverables. Nothing in these Terms shall prevent Kapta from creating derivative works based on the Kapta Reserved Technology, developing, modifying, using, marketing, distributing or otherwise commercially exploiting the Kapta Reserved Technology in any manner. Kapta reserves all rights not expressly granted to Customer under these Terms. Nothing contained herein shall be construed as limiting Kapta’s rights to commercially use or market in the conduct of Kapta’s business general ideas, concepts, know-how, knowledge, market analysis, frameworks, techniques, tools, approaches, and methodologies or other residual values possessed or known to Kapta or learned or developed during the course of providing the Services, without obligation of any kind to Customer.
8. Limited Warranty. Kapta represents and warrants that Kapta will perform the Services in a good and workmanlike manner and in substantial accordance with the express terms of the SOW. Customer must notify Kapta of any perceived defect in Services or Deliverables within 30 days of the completion or delivery of the particular task or Deliverable at issue. As Kapta’s sole obligation and Customer’s sole and exclusive remedy for breach of this warranty, Kapta will re-perform any defective services at no additional cost to Customer.