Subscription Agreement
This Subscription Agreement (“Agreement”) governs all Orders (defined below) for the Kara, Inc. and / or its affiliates and / or subsidiaries (“Kara”) software service subscription and associated products and services (“Services”) with customers, resellers, independent contractors and any other end users accessing the Services, whether through Kara or a third party (each a “Customer”). By accessing or using the Services, you accept and agree to be bound by this Agreement. If you are entering this Agreement on behalf of a company or other legal entity, you represent and warrant that you have authority to bind such entity to this Agreement, in which case the terms “you” or “your” refers to such entity.
1. SERVICES
1.1 Provision of Services. Subject to your compliance with this Agreement, including without limitation payment of fees, Kara will provide the Services in accordance with the Agreement and the applicable Order. “Order” shall mean the Kara form of Order, an authorized Kara reseller pre-approved order form or a Customer purchase order that accurately describes the Services ordered by a Customer, which Kara accepts in electronic or written form.
1.2 In the event of a conflict between the Agreement and the applicable Order(s), the Order(s) will control. Orders may also contain additional terms and conditions including links or references to various Kara programs, policies and promotions which will also control over the terms of the Agreement, for purposes of those specific programs, promotions, policies or Orders. We have subscription guidelines for pricing, based upon standard metrics such as employee headcount. You will provide information to reasonably assure that our pricing is accurate once per year.
1.3 Support; Maintenance. Kara will maintain and support the Services in accordance with its standard policies, which may be updated.
1.4 Account Protection. If the security of your login information has been compromised, you will promptly notify us and deactivate or change the account login credentials of the compromised account. You will also promptly deactivate or change the login credentials of any former employees, independent contractors or others that are no longer authorized by you to access the Services.
1.5 Assistance. You will promptly provide Kara with information and assistance so that Kara can activate and operate the Services.
2. FEES AND PAYMENT
2.1 Fees. You will pay Kara the fees in the currency specified in the Order, as of the date(s) stated in the Order, and in accordance with the payment instructions provided in the Kara invoice(s). Kara may invoice you under one or more subsidiaries, as identified in the invoice(s). All fees are exclusive of applicable sales, excise, value-added or use taxes. You are responsible for paying such taxes, whether such taxes are billed by Kara or assessed directly by the applicable taxing authority. You have the right to withhold any applicable taxes from any fees due under an Order if required by any government authority, provided, however, that you will gross the payment up in the amount of any such withholding above any fees due so that Kara receives payment in the amount provided in the Order.
2.2 Payment Terms. Payments are due net thirty (30) days from the date of the invoice unless agreed otherwise in the Order. You will notify Kara of any invoice dispute within fifteen (15) days of receipt of invoice. The parties will engage in good faith efforts to resolve the dispute. An invoice will not be considered in dispute if such dispute is a caused by a Customer’s lack of assistance under Section 1.4.
2.3 Late Payments. Failure to pay fees when due constitutes a material breach of this Agreement. If payment is more than thirty (30) days past due, without limiting any other rights, Kara may (i) charge a late fee on the unpaid balance at the lesser of one percent (1%) per month or the maximum lawful rate permitted by applicable law; (ii) accelerate all unpaid fees under this Agreement so that all such fees become immediately due and payable; and/or (ii) suspend its Services until such unpaid fees are paid in full, during such time you will be continued to be charged for Services usage regardless of the suspension or termination.
3. PROPRIETARY RIGHTS
3.1 Service Ownership; License; Retained Rights. Kara owns all right, title, and interest in and to the Services, including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein. Kara grants you a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Services for the term of the Order. The rights granted under this Agreement do not provide you with title to or ownership of the Services, but only a revocable license to use the Services subject to and under this Agreement. Upon termination or expiration of this Agreement, you shall cease using the Services. All rights not expressly granted to you hereunder are reserved by Kara. The Services may include limited access to third party frameworks commonly used by businesses (“Frameworks”). The Frameworks are not owned by Kara and Kara may add or remove Frameworks from the Services. The Customer remains solely responsible for compliance with applicable laws and any Frameworks.
3.2 Restrictions. You may not, or knowingly permit others to, (i) copy, reproduce, modify, translate, create derivative works, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services; (ii) use, evaluate or view the Services for the purpose of designing or creating a competitive service; or (iii) resell or use the Services in a service bureau.
4. CONFIDENTIALITY AND DATA
4.1 Confidential Information. “Confidential Information” means any information disclosed by either party to the other party that (i) the disclosing party identifies as confidential or proprietary; or (ii) reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. You acknowledge that the Services, the terms of this Agreement and any Order, and any other proprietary or confidential information provided to you by Kara constitute valuable proprietary information and trade secrets of Kara. Kara acknowledges that the Confidential Information you provide to Kara constitutes your valuable proprietary information and trade secrets. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with this Agreement, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. The receiving party agrees to promptly report any breaches of this section to the disclosing party. Section 4.1 will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, where legally permissible, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “Responding Party”) shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed. Notwithstanding the foregoing, Confidential Information does not include any information which (i) is now, or becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of this Agreement by the receiving party; (ii) was acquired by the receiving party without restriction as to use or disclosure; (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure; or (iv) is independently developed by or for the receiving party without use of or reference to the disclosing party's Confidential Information.
4.2 Customer Data. “Customer Data” means any data or material that Customers process, post, upload, store, or transmit using the Services. As between Kara and you, Customer Data is your Confidential Information. You grant Kara a royalty-free, nonexclusive, worldwide, right and license to use, copy, store, process, transmit and display Customer Data solely as necessary to provide the Services. You represent and warrant that you possess sufficient rights in and to the Customer Data, and that you have obtained all the required consents from data owners, as may be necessary, to permit the use contemplated under this Agreement. You have thirty (30) days from the date of termination of the Services to request a copy of your Customer Data, which will be made available to you in the same format as maintained by Kara, subject to your compliance with the Agreement. Kara may delete any Customer Data after the thirty (30) day period following termination of the Services.
4.3 Personal Data. You will refrain from processing, posting, uploading, storing or transmitting personally identifiable information (“Personal Data”) except as reasonably necessary to use the Services. If you require access to or transfer of Customer Data in connection with the Services to jurisdictions outside of the United States, you will notify us and execute appropriate data transfer program agreement(s).
4.4 Aggregated / Anonymized Data. (”Aggregated or Anonymized Data”) refers to data other than Personal Data (including, for example, de-identified or anonymized content, anonymous usage statistics, technical, statistical and/or analytical data) gathered or generated by use of the Services. Kara collects and uses Aggregated Data in accordance with its privacy policies and the data protection laws. As between Kara and Customer, Aggregated Data is Kara’s Confidential Information.
4.5 API. Kara may expose its application-programming interface (“API”) or other access points of the Services to authorized third parties which may be subject to third party terms. Kara does not have any liability for third party applications regardless of whether it offers API access to such applications. API connections may be subject to third-party usage restrictions or fees.
4.6 Notice of Data Breach. If Kara becomes aware that your Confidential Information has been accessed without proper authorization and contrary to the terms of this Agreement, Kara will alert you without undue delay, take actions as necessary to preserve forensic evidence, eliminate the cause of the data breach, and provide available information to you regarding the breach.
5. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY
5.1 Kara Warranty. Kara represents and warrants that (i) it has the right, title, and interest necessary to provide the Services under the this Agreement and each Order; (ii) the Services will perform materially in accordance with the terms of this Agreement; (iii) the functionality of the Services will not be materially diminished during the Order term; (iv) the Services will not contain any viruses, time bombs or other disabling code; (v) the Services will comply with applicable law in all material respects; and (vi) it will use commercially reasonable efforts to maintain the security of the Services, your Confidential Information, and Customer Data using appropriate organizational, physical, administrative and technical safeguards. Restrictions may apply in free, evaluation, demonstration or beta licenses per the applicable Order. You understand that the use of the Services does not constitute any guarantee or assurance that the security of your systems, networks and assets cannot be breached or are not at risk. Use of the Services is an assessment as of a particular date and must be updated periodically.
5.2 Your Warranty. You represent and warrant that (i) in relation to the Services, you will comply with all applicable laws, codes, regulations and ordinances in all material respects; and (ii) you have all consents and authorizations as may be necessary for Kara to provide the Services, including with respect to Customer Data.
5.3 Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, KARA DISCLAIMS ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, INTERUPTIONS IN THE SERVICES AND WARRANTIES ARISING FROM A COURSE OF DEALING.
5.4 Limitations of Liability. THE LIMITATIONS OF LIABILITY IN SECTIONS 5.4.1 AND 5.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE AGREEMENT. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THEIR DAMAGES. THE LIMITATIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
5.4.1 No Special Damages. NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION ("SPECIAL DAMAGES"), OF ANY PARTY, INCLUDING THIRD PARTIES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.
5.4.2 Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF SECTION 3.2, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE FEES PAID OR OWED BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE. IN NO EVENT WILL THIS LIMITATION APPLY TO THE AMOUNTS DUE FOR SERVICES.
5.5 Your Indemnity. You shall indemnify, defend, and hold harmless Kara, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement agreement, from a third party’s claim that arises out of (a) your breach of any applicable laws, regulations, codes or ordinances, including but not limited to privacy law; or (b) a third party’s claim that Customer Data or any application you develop infringes any trademark, copyright or patent in the United States.
5.6 Kara Indemnity. Kara shall defend you, your officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement agreement, from a third party’s claim that arises out of a third party’s claim that the Services, as provided by Kara to you within the scope of this Agreement, infringe any trademark, copyright or patent in the United States. Kara has no liability to indemnify a claim of infringement to the extent it arises from: (i) infringing matter supplied or developed by you; (ii) unauthorized modifications or uses of the Services; or (iii) your acts or omissions not in accordance with the terms of this Agreement. If your use of the Services is enjoined or is likely to be enjoined due to a third party claim of infringement for which Kara is required to indemnify you under this Agreement, then Kara may, at its expense and within its sole discretion, do one of the following: (i) procure for you the right to continue using the Services; (ii) replace or modify the enjoined Service to make it non-infringing but functionally equivalent; or (iii) terminate the enjoined Services and return any fees paid for enjoined Services not yet rendered.
5.6.1 The obligations set forth in this Section 5.6 are Kara’s sole and exclusive obligations with respect to any intellectual property claim for which Kara has an obligation to indemnify you.
5.7 Indemnification Conditions. The indemnification obligations contained in this Agreement are conditioned upon: (a) notice by the indemnitee to the indemnitor of any claim, action or demand for which indemnity is claimed within five (5) days of the indemnitee receiving notice of such claim (failure to meet this condition does not exempt the indemnitor of its indemnification obligation, except to the extent that failure has materially prejudiced the indemnitor’s ability to defend the claim); (b) complete control of the defense and settlement by the indemnitor; and (c) reasonable cooperation by the indemnitee in the defense as the indemnitor may request. The indemnitee has the right to participate in the defense against the indemnified claims with counsel of its choice and at its own expense but may not confess judgment, admit liability or take any other actions prejudicial to the defense. Further, the indemnitee may not settle an indemnified claim unless the indemnitor has declined to defend.
6. TERM; TERMINATION; SUSPENSION
6.1 Term. This Agreement commences on the effective date of the first Order and continues for as long as there is at least one active Order. The Agreement automatically becomes effective again in the event that a new Order is entered into by and between the parties, unless a new agreement is executed by the parties. Unless otherwise specified in the Order, each Order will automatically renew for a period equal to the expiring Order term unless either party gives the other notice of non-renewal at least sixty (60) days before the end of the term. The per-unit pricing for the term may be increased by seven percent (7%) during each automatic renewal term.
6.2 Termination for Breach. In addition to any other remedies it may have, if either party breaches this Agreement and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate this Agreement or a specific Order upon ten (10) days’ written notice. Upon termination of this Agreement or an Order due solely to your failure to pay fees, you will pay for the Services that have been rendered through the termination date plus all other charges that would have been due under the remaining term of each affected Order. Upon termination of this Agreement or an Order due solely to a Kara breach, Kara will refund a pro rata portion of any fees paid for services not yet rendered as of the date of termination.
6.3 Suspension. Kara may suspend or terminate access to or use of all or any part of the Services without incurring any resulting obligation or liability, if: (a) Kara receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Kara to do so; or (b) Kara believes, in its good faith and reasonable discretion, that: (i) you have not complied with this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or the Kara Knowledgebase; (ii) you are, have been, or are likely to be involved in fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or terminates. This Section 6.3 does not limit Kara’s other rights or remedies, whether at law, contract, or equity.
7. GENERAL
7.1 Independent Contractors Each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint venturers, or agents of one another.
7.2 Subcontractors. If Kara subcontracts any portion of the Services to a third party, Kara (i) shall require such subcontractor to comply with the material terms of this Agreement, and (ii) remains responsible for any acts or omissions of its subcontractors.
7.3 Export. You will not import, export, or re-export the Services to any country (i) in violation of applicable laws, (ii) to a national or resident of Cuba, Iran, North Korea, Syria or any other country to which the United States has embargoed goods, or (ii) any person or entity on the United States Treasury Department’s list of Specially Designated Nationals or the United States Commerce Department’s Table of Denial Orders.
7.4 Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, third party acts or omissions, strikes, hackers, terrorism, failure of third party networks or the Internet, power outages, labor disputes, or governmental demands / restrictions.
7.5 Assignment. Either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection is void.
7.6 Notice. All communications that a party provides will be written and delivered in person, express mail, certified mail, overnight delivery, or electronic mail at the respective addresses set forth below, or at such other addresses as may be designated.
If to Kara: Kara, Inc. 224 Baltic Street Brooklyn, NY 11202 ATTN: Miriam Roure Email: miriam@joinkara.com
If to Customer: Notices to you will be addressed to the contact(s) designated in the applicable Order.
7.7 Miscellaneous. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of New York, without giving effect to its laws governing conflicts of law. Any claim arising out of or relating to this Agreement shall be brought in the federal or state courts in New York City, New York, USA. The parties consent to the personal jurisdiction of the foregoing courts. The parties waive any objections or defenses to the jurisdiction or venue. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns, heirs, and legal representatives. A waiver by either of the parties hereto of any breach by the other party of any of the provisions of this Agreement shall not constitute a general waiver of such provision. If any provision is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this Agreement will continue in full force and effect. This Agreement represents the entire understanding between the parties with respect to the subject matter hereof and supersedes all other written or oral agreements previously made by or on behalf of the parties and may be changed only by agreements in writing signed by the authorized representatives of the parties. Customer purchase orders are for internal accounting purposes only and any associated terms are not enforceable. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument. Electronic signatures shall be deemed original signatures.