Kosy Terms & Conditions
Kosy Terms and Conditions
These terms and conditions (“Terms and Conditions”) are between Kosy Software Ltd, a company incorporated and registered in England and Wales with company number 12887873 and registered office at 3rd Floor, 1 Ashley Road, Altrincham, Cheshire, WA14 2DT, United Kingdom (“Kosy”) and the client listed on the Order Form (“Client”), and are effective as of the date stated on the Order Form (the “Effective Date”) or the date Client first starts using the Services, whichever is earlier. Kosy and Client are each a “party” and together the “parties”.
1.1 The following terms (and their grammatical variants provided the initial letter is capitalised), when used in these Terms and Conditions will have the following meanings:
“Affiliates”means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition,
“Control” means beneficial ownership of fifty percent (50%) or more of the voting power or equity in an entity or the legal power to direct or cause the direction of the general management, of the company, partnership or other legal entity.
“Authorised Users” means those employees and other personnel of Client who Clients permits to use the Services, who have created an account with Kosy to use the Services and who are identified and named as users of the Service on their respective accounts.
“Commercially Reasonable Endeavours” means with respect to activities of a party, those endeavours, efforts and resources typically used by that party to achieve or fulfil a similar objective or obligation that was in its own interest in similar circumstances but in any event no less than the effort and resource that would be used by a similar company acting reasonably in such circumstances, provided, however, that the party will not be required to sacrifice its commercial interests in order to achieve or fulfil such objective.
“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.However, “Confidential Information” will not include any information which: (a)is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d)is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
“Contract Period” means each successive twelve (12) calendar month period for annual subscriptions, and each successive one (1) calendar month period for monthly subscriptions, commencing on the Effective Date or an anniversary thereof.
“Data Protection Laws” means all applicable legislation relating to data protection and privacy, including the GDPR (together with any national implementing laws in any Member State of theEuropean Union or, to the extent applicable, in any other country) and the UK Data Protection Act 2018, as amended, repealed, consolidated or replaced from time to time.
“Documentation”means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by Kosy for the Services, including any specification, as amended by Kosy from time to time.
“Fair Usage Policy” means the fair usage policy made available by Kosy, as amended by Kosy from time to time.
“GDPR” means the General Data ProtectionRegulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
“Implementation Services” means those implementation services (if any)set out in the Order Form.
“Implementation Services Fees” means implementation services fees (if any) set out in the Order Form.
“Insolvency Event” means when: (i) a party suspends payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of section 123 of theInsolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act1986; (ii) a party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors; (iii)in relation to a party, a petition is filed, a notice is given, a resolution is passed or an order is made, for or in connection with the winding up of a party;(iv) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over a party; (v) a receiver is appointed over all or any of the assets of a party; (vi) any order is made for or there occur proceedings constituting main proceedings in any member state of the European Union; or (vii) any analogous demand, appointment or procedure is instituted or occurs in relation to a party in any jurisdiction in which the party carries on business;
“Initial Service Term” means the initial service term stated on theOrder Form.
“Intellectual Property” means all patents, rights to inventions, copyright and related rights, moral rights, database rights, trade marks and trade names, rights to goodwill and to sue for passing off, rights in designs, rights in ConfidentialInformation (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including all applications (and rights to apply) for, and renewals and extensions of and rights to claim priority from such rights and all similar or equivalent rights and forms of protection which subsist or will subsist now or in the future in any part of the world.
“Liable”and “Liability” means any liability arising under, out of or in connection with these Terms and Conditions, whether or not foreseeable or in the contemplation of the parties at any time, in or under contract, tort(including negligence), breach of statutory duty, misrepresentation, indemnity, restitution or otherwise.
“OrderForm” means an online order form, quote or other similar digital document or web-based process provided by Kosy that references these Terms andConditions and sets forth the specific subscription length for the Services, pricing therefor and other commercial terms.
“Personal Data” has the meaning given to it in Data Protection Laws.
“PilotPeriod” has the meaning given to it in the Order Form.
“PilotUse Fee” has the meaning given to it in the Order Form.
“Professional Services” shall mean any Implementation Services, training, configuration, consulting, data migration, conversion, integration setup, or other professional services provided by Kosy to Client, as set forth in an Order Form.
“Service Capacity” has the meaning given to it in the Order Form.
“Services” means the SaaS-based virtual office platform made available to Client by Kosy on a subscription basis, as set forth in the applicable Order Form.
“SystemData” means anonymised or aggregated Client Data and other data collected by Kosy regarding the Services.
2.1 Provision of the Services. Subject to these Terms and Conditions, Kosy will make the Services available to Client pursuant to these Terms and Conditions and the applicableOrder Form, and hereby grants Client and its Affiliates named in the Order Forma non-exclusive, non-transferable, non-sub licensable right and limited licence to access and use the Services internally for the Permitted Purposes. All OrderForms will be subject to and are hereby incorporated into these Terms andConditions, and no terms or conditions contained in any purchase order or other document issued by Client shall form part of any contract between Kosy andClient.
2.2 Permitted Purpose. Client may only use the Services internally in connection with the organization, management and running of day-to-day tasks relating to Client’s business for the purpose of providing a virtual office environment in which Client’s business operates (the “Permitted Purpose”).
2.3 Data Security.
2.3.1 Kosy will maintain a security program materially in accordance with industry standards that is designed to: (i)ensure the security and integrity of data uploaded by or on behalf of Client to, or collected or produced by, the Services (“Client Data”); (ii) protect against threats or hazards to the security or integrity of Client Data; and (iii) prevent unauthorised access toClient Data.
2.3.2 Kosy’s security safeguards include measures for preventing access, use, modification or disclosure of Client Data by Kosy personnel except: (i) to provide the Services and prevent or address service or technical problems; (ii) as required by applicable law; or (iii) as Client permits or under these Terms and Conditions.
2.3.3 To the extent that Kosy processes any PersonalData contained in Client Data, on Client’s behalf, the Kosy processing agreement found at https://www.kosyoffice.com/data-processing-agreement shall apply and is incorporated into theseTerms and Conditions by reference.
2.4 License Restrictions.
The rights granted herein are subject to the following restrictions(the “License Restrictions”).Client will not directly or indirectly:
2.4.1 reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Services (except if permitted by applicable law and required to integrate the Services with other software where Kosy is not prepared to carry out such activity at a reasonable fee or provide Client with the information reasonably necessary to achieve such integration for a reasonable cost within a reasonable period);
2.4.2 remove or alter the conditions of use, any copyright notices and other identification disclaimers as they may appear on the Services or the Documentation;
2.4.3 make copies, electronic or otherwise, of Client Data for any external purpose;
2.4.4 frame or mirror any part of the Services, other than framing on Client’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation;
2.4.5 attempt to probe, scan or test the vulnerability of the Services, breach the security or authentication measures of the Services without proper authorisation or wilfully render any part of the Services unusable for any user;
2.4.6 use or access the Services or Intellectual Property of Kosy: (i) to develop a product or service that is competitive with Kosy’s products or services; or (ii) to engage in competitive analysis or benchmarking against products or services provided by third parties that are similar to the Services;
2.4.7 transfer, distribute, resell, lease, license, or assign the Services;
2.4.8 allow the Services to become the subject of any charge, lien or encumbrance; or
2.4.9 otherwise use the Services: (i) in violation of applicable law; (ii) to infringe or violate third party rights; or (iii) other than for the Permitted Purposes or stated in the applicable Order Form.
2.5 Client Responsibilities.
2.5.1 Client acknowledges that Kosy’s provision of the Services is dependent on Client providing all reasonably required cooperation (including the prompt provision of personnel, cooperation and materials as reasonably required and any other requirements as may be specified by Kosy from time to time), and Client will provide the same in a diligent and timely manner.
2.5.2 Client will: (i) be responsible for all use of the Services under its account; (ii) use Commercially Reasonable Endeavours to prevent unauthorised access to or use of the Services and Client Data and notify Kosy promptly of any unauthorised access or use of the same; (iii) comply with Kosy’s Fair Usage Policy ; and (iv) be responsible for obtaining and maintaining any equipment, software and ancillary software, services or data needed to connect to, access or otherwise use the Services, including asset forth in the Documentation. Client will be solely responsible for its failure to maintain such equipment, software and services, and Kosy will have no Liability for such failure.
2.5.3 Client agrees that Kosy may change, deprecate or republish application programming interfaces (“APIs”) for the Services, and that it is Client’s responsibility to ensure that calls or requests Client makes to the Services are compatible with the then-current APIs for the Services.
2.6 Pilot Period. In accordance with the Order Form, if Client has entered into a Pilot Period with Kosy for the provision of the Services, Kosy will make the Services available to Client on a trial basis, for Pilot Use Fee stated in the Order Form, until the earlier of: (i) the end of the Pilot Period, or (ii) the start date of theInitial Service Term. Either party may terminate provision or use of the Services during the Pilot Period by serving written notice on the other party no later than 5 days before the end of the Pilot Period. In the absence of written notice terminating the Pilot Period, provision of the Services shall continue on these Terms and Conditions for the Initial Service Term as stated in the Order Form (or if none is stated, a monthly subscription) and theFees shall become payable.
2.7 Beta Features. Kosy may, from time to time, create experimental enhancements, upgrades, updates, improvements, modifications, extensions and other experimental changes to the Services and Documentation and may make these features available to Client for early access (“Beta Features”). Kosy may communicate an offer for use of these services to Client for purchase or on a free of charge trial basis. Client may elect to trial these Beta Features by communicating such election to Kosy and by doing so, Client hereby authorises Kosy to implement such Beta Features and Client agrees to pay, on demand, any applicable fee for use of the Beta Features. Client understands that Kosy is not responsible for the stability or functionality of Beta Features until such Beta Features have been made into Platform Updates or New Packages. Client or Kosy may terminate Client’s access to Beta Features at any time.
2.8 The Client understands and agrees that the Services are provided during the Pilot Period and Beta Features are provided on an “as-is” and “as available” basis, without any representation, warranty or indemnity and at the Client’s sole risk and to the fullest extent permitted by law, Kosy disclaims all Liability in respect of the same. Kosy does not provide any indemnities, warranties or conditions, express or implied, including those of merchantability, satisfactory quality, title, non-infringement, and fitness for a particular purpose, in relation to the Services during the Pilot Period and Beta Features and Client’s exclusive remedy if it is not satisfied with or if it has suffered loss or damage is to cease use of the same.
2.9 Platform Updates. Kosy may, from time to time, develop enhancements, upgrades, updates, improvements, modifications, extensions and other changes to the Services and Documentation(“Platform Updates”). Client hereby authorises Kosy to provide Platform Updates to the Services provided that such updates do not have a material adverse effect on the functionality or performance of the Services.
2.10 New Packages. Kosy may, from time to time, develop additional features and functionality to the Services and Documentation which are distinct to the current Services but which may be used in conjunction with the Services (“New Packages”). Client hereby agrees that Kosy is under no obligation to provide these New Packages, but that Kosy may, at its discretion, communicate an offer to Client for trial use of such features to allow Client to access these New Packages for a period and cost to be agreed between the parties. Alternatively or subsequently, Client may purchase any New Packages, the cost of which will be added to their current monthly or annual subscription. New Packages, once provided to Client, form part of the Services, provided, however that during any trial period for a New Package, Section 2.8 shall apply.
2.11 Implementation Services. Kosy may provide Client with Implementation Services as described in the Order Form. Should Implementation Services be provided, Client shall pay the Implementation Services Fees on demand.
2.12 Affiliates. Any Affiliate of Client will have the right to enter into an Order Form executed by such Affiliate and Kosy and these Terms and Conditions will apply to each such Order Form as if such Affiliate were a signatory to these Terms and Conditions. With respect to such Order Forms, such Affiliate becomes a party to these Terms and Conditions and references to Client in these Terms and Conditions are deemed to be references to such Affiliate. Each Order Form is a separate obligation of Client entity that executes such Order Form, and no other Client entity has any Liability or obligation under such Order Form.
2.13 Service Capacity. Client may permit the maximum number of Authorised Users up to the Service Capacity specified in the Order Form to use the Services and such access rights shall not be shared with any third parties. Client shall, in respect of users acting under Client’s authority or with Client’s permission: (a) ensure that all Authorised Users acknowledge and agree to the obligations and restrictions regarding use of the Services described herein; and (b) ensure that Authorised Users do not share passwords, usernames, or individual accounts/invitations to use the Service within the Client’s organisation or make the Services or Client Data available to any unauthorised third party. Client is responsible for the acts and omissions of any individual that uses the Services with accounts that were provided to the Client or have been registered to an Authorised User.
2.14 Training. Kosy may provide Client with training or other assistance in relation to the Services. Unless otherwise stated in an Order Form, such training and assistance may be provided via electronic or digital means, may be pre-recorded, will be provided at such cost as is agreed between the parties and shall constitute Professional Services. Furthermore, Client shall, where required, provide Kosy with safe access during opening hours to any premises to which it controls which Kosy reasonably needs to enter in order to install any hardware or software to enable Client to access the Services.
2.15 Withdrawal or Changes. Without prejudice to Section 8, Kosy may withdraw any Services and terminate the part(s) of any Order Form governing such Services in the event that Kosy ceases to make such Services available to its clients generally. In such circumstances, Kosy will use Commercially Reasonable Endeavours to give Client six (6) months’ prior written notice. Furthermore, Kosy may modify, supplement, enhance, or otherwise change (including through routine upgrades and bug fixes) the Services (in whole or part) including the technical, functional, administrative and operative methods of supply of the same wherever Kosy deems necessary (in its sole discretion)to: (a) comply with applicable law; (b) address unforeseen or imminent dangers or risks (including fraud, malware, spam, data breaches, cybersecurity or other risks); or (c) address actual or potential changes in the organisation of its business, technical systems or requirements, provided, in each case, the foregoing does not have a materially adverse impact on the functionality, performance or security of the Services. Client agrees that nothing stated herein shall limit Kosy in any way from determining in its sole discretion how to provide the Services to Client.
2.16 Suspension. Kosy shall be entitled to suspend or restrict access to all or part of the Services: (a) where it is entitled to terminate these Terms and Conditions pursuant to Section 8; (b) to carry out scheduled or emergency maintenance (in which case Kosy shall use Commercially Reasonable Endeavours to minimise the disruption caused to Client); and (c) if Client fails to pay any amounts that are not disputed pursuant to Section 3.4 within ten (10) days of it becoming due.
3.1 Fees. Client will pay Kosy the fees set forth in the Order Form (or if none are stated, Kosy’s then current prices) in accordance with the payment terms set forth in the Order Form (“Fees”).Except as otherwise specified herein or in any applicable Order Form, Fees are:(a) quoted and payable in the currency set forth in the Order Form; (b) exclusive of any reasonable expenses incurred by Kosy in providing Professional Services which shall be reimbursed by Client on demand; and (c) non-cancellable and non-pro-ratable for partial months or years or where less than total number of permitted Authorised Users uses in the Services in any month or year, and non-refundable, except as expressly set forth herein.
3.2 Service Capacity. Client agrees to provide access to a restricted number of Authorised Users up to the Service Capacity as defined in the Order Form. If Client’s use of the Services exceeds the Service Capacity as stated on the Order Form, Client agrees to pay such additional fees (at Kosy’s then current rates) as are applicable for the
additional usage on demand plus interest pursuant to Section 3.3.
3.3 Late Payment. If Client fails to pay any amounts to Kosy (including Fees) that are not disputed pursuant to Section
3.4 Kosy may charge interest on the overdue amount from the due date up to (but excluding) the date of
actual payment, after as well as before judgment at 4% above the base rate of the Bank of England from time to time. Such interest shall accrue on a daily basis, be compounded monthly and is payable on demand.
3.4 Disputed Amounts. If Client disputes any amount that Kosy believes is due, Client shall notify Kosy in writing within ten (10) days of Kosy requesting such amount and the parties shall act reasonably and in good faith to resolve such dispute.
3.5 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Client will be solely responsible for payment of all Taxes, except for those taxes based on the income of Kosy. Client will not withhold any taxes from any amounts due to Kosy unless such withholding or deduction is required by applicable law. In such event, the amount of such payment due from Client shall be increased to an amount which (after making such withholding or deduction) leaves an amount equal to the payment which would have been due if no such withholding or deduction had been required.
4. ProprietaryRights and Confidentiality
4.1 Proprietary Rights.
As between the parties, Kosy exclusively owns all right, title and interest in and to the Services (including all System Data) and Kosy’s Confidential Information, and Client exclusively owns all right, title and interest in and to Client Data and Client’s Confidential Information.
Client may from time to time provide Kosy with suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”).Kosy will have: (a) full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality; and (b) an unencumbered right, without any obligation to compensate or reimburse Client, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of these Terms and Conditions and it will not disclose the same to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with this Section; and(b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its Commercially Reasonable Endeavours to minimise such disclosure to the extent permitted by applicable law). Neither party will disclose the non-public terms of these Terms and Conditions to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorised use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the License Restrictions, the non-breaching party will, notwithstanding anything in these Terms and Conditions, be entitled to seek immediate injunctive and other equitable relief in any jurisdiction, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in these Terms and Conditions.
4.4 Client Data.
Notwithstanding anything to the contrary, Client agrees that Kosy and its Affiliates is hereby granted a non-exclusive, non-transferable, sub-licensable (through multiple tiers), fully paid-up worldwide right and licence to use Client Data: (a) to provide the Services and Professional Services; (b) internally to develop and improve its products and services; and (c) to create System Data.
4.5 Third Party Information. The Services may contain Intellectual Property owned by third parties. Such third party Intellectual Property may be licensed by the third party to Client under separate or different terms and conditions(“Third Party Terms”) and are not licensed to Client under these Terms and Conditions. Such Third Party Terms are available on the platform for the Services and Client agrees to comply with such Third Party Terms, including any obligation to pay any fees due to third parties. Client agrees to indemnify Kosy in respect of any losses, damages, liabilities, costs, charges, and expenses, including reasonable legal fees and/or penalties Kosy incurs as a result of any breach by Client of any Third Party Terms.
5. Warranties and Disclaimers
5.1 Mutual. Each party warrants and represents to the other that it: (a) has full power and authority to enter into and perform its obligations under these Terms and Conditions; (b) shall obtain and maintain all necessary licences clearances, permissions, and consents necessary to carry out all of its obligations under these Terms and Conditions, provide any information, data or other materials that it provides hereunder, and to permit the other party to use the same as contemplated hereunder; and (c) shall employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of its obligations under these Terms and Conditions.
5.2 Kosy. Kosy warrants that: (a) the Services will conform in all material respects with the relevant Documentation; and (b) it will provide the Professional Services in a professional and workmanlike manner and in accordance with the applicable Order Form. For breach of the foregoing express warranty, Client’s exclusive remedy shall be repair or replacement (as determined by Kosy) of the deficient Services or re-performance of the deficient Professional Services. If Kosy cannot repair or replace the deficientServices or re-perform the Professional Services, in each case so they are as warranted herein, Client shall be entitled to a pro-rata refund of the Fees paid to Kosy for such deficient Services or Professional Services.
5.3 Disclaimers. Except as expressly set forth herein, the Services are provided on an “as is” and “as available” basis and each party disclaims all warranties and conditions express or implied, including those of merchantability, satisfactory quality, title, non-infringement, and fitness fora particular purpose. In particular, Kosy does not warrant that the Services:(a) will be provided free from interruption; (b) will run on any particular computer system or browser; (c) is accurate, complete, reliable, secure, useful, fit for purpose or timely; (d) will be tested for use; or (e) will be suitable for or be capable of being used by Client or any third party. Client acknowledges that the Services may contain bugs, viruses, make errors or misinterpret it issues, and therefore Client shall ensure it uses anti-virus software consistent with prevailing industry standards.
6.1 Indemnity by Kosy. Kosy will defend Client against any claim, demand, suit, or proceeding (“Claim”) made or brought against Client by a third party alleging that the use of the Services in accordance with these Terms and Conditions infringes or misappropriates a United Kingdom patent, copyright or trade secret and will, subject to Section 7, indemnify Client for any damages finally awarded by a court of competent jurisdiction against Client (or any settlement approved by Kosy in writing) in connection with any such Claim. In connection with any Claim: (a)Client will promptly notify Kosy of such Claim in writing; (b) Kosy will have the sole and exclusive authority to defend and/or settle such Claim (provided that Kosy may not settle any Claim without Client’s prior written consent, which will not be unreasonably withheld, delayed or conditioned where it unconditionally releases Client of all related liability); and (c) Client reasonably cooperates with Kosy in connection therewith. If the use of the Services by Client has become, or in Kosy’s opinion is likely to become, the subject of any Claim of infringement, Kosy may at its option and expense: (i) procure for Client the right to continue using and receiving the Services as set forth hereunder; (ii) replace or modify the Services to make them non-infringing(with comparable functionality); or (iii) if the options in subsections (i) or(ii) are not reasonably practicable, terminate these Terms and Conditions and provide a pro rata refund of any prepaid Fees corresponding to the terminated portion of the applicable subscription term. Kosy will have no liability or obligation with respect to any Claim to the extent such Claim is caused by: (A)compliance with designs, guidelines, plans or specifications provided by +6,Client; (B) use by Client of any version of any downloadable component of the Services other than the latest version made available to Client; (C) modification of theServices by any party other than Kosy without Kosy’s express written consent;(D) Client Data or Client Confidential Information; (E) the combination, operation or use of the Services with other applications, portions of applications, product(s) or services where the Services would not by itself be infringing; or (F) continued use of the Services after Client was aware of the Claim or Kosy had notified it of the possibility of the Claim (subsections (A) through (F), “
Client; (B) use by Client of any version of any downloadable component of the Services other than the latest version made available to Client; (C) modification of theServices by any party other than Kosy without Kosy’s express written consent;(D) Client Data or Client Confidential Information; (E) the combination, operation or use of the Services with other applications, portions of applications, product(s) or services where the Services would not by itself be infringing; or (F) continued use of the Services after Client was aware of the Claim or Kosy had notified it of the possibility of the Claim (subsections (A) through (F), “Excluded Claims”). This Section represents Client’s exclusive remedy for infringement or misappropriation of Intellectual Property.
6.2 Indemnification by Client.Client will defend Kosy against any Claim made or brought against Kosy by a third party arising out of the Excluded Claims, and Client will indemnify Kosy for any damages finally awarded against Kosy (or any settlement approved byClient) in connection with any such Claim. In connection with any Claim: (i) Kosy will promptly notify Client of such Claim in writing; (ii) Client will have the sole and exclusive authority to defend and/or settle such Claim (provided thatClient may not settle any Claim without Kosy’s prior written consent, which will not be unreasonably withheld, conditioned or delayed where it unconditionally releases Kosy of all Liability); and (iii) Kosy reasonably cooperates with Client in connection therewith.
7.1 Exclusions. Subject to Section 7.3, Kosy is not Liable to Client for any: (a) loss of actual or anticipated profits; (b) loss of sales, business or revenue; (c) loss of agreements or contracts; (d) wasted expenditure (excluding Fees paid under these Terms and Conditions); (e) loss of anticipated savings; (f) loss of or damage to reputation or goodwill; (g) loss of use or corruption of software, data or information, in each case whether direct or indirect; or (h) indirect, special, incidental, consequential or punitive damages of any character.
7.2 Limitation. Subject to the Section 7.3, the total aggregate Liability of Kosy for all claims arising in anyContract Period shall not exceed an amount equal to the total amount paid byClient to Kosy under these Terms and Conditions in that Contract Period.
7.3 Exception. Nothing in these Terms and Conditions excludes or restricts any liability that cannot be excluded or restricted under applicable law.
8.1 Term. The term of these Terms and Conditions will commence on the Effective Date and continue for the Initial Service Term unless terminated as set forth below. Except as set forth in such Order Form, theInitial Service Term will automatically renew for successive renewal terms equal to the length of the Initial Service Term on Kosy’s then current prices, unless either party provides the other party with written notice of non-renewal at least:
8.1.1 thirty (30) days prior to the end of the then-current term of an annual subscription; or
8.1.2 five (5) days prior to the end of the then-current term of a monthly subscription.
8.2 Termination. Kosy may terminate these Terms and Conditions or any Order Form at any time: (a) by providing Client with six (6) months’ prior written notice in respect of an annual subscription, or fifteen (15)days’ prior written notice in respect of a monthly subscription; or (b) ifClient breaches the Fair Usage Policy. Each party may terminate these Terms andConditions upon written notice to the other party if: (i) there are no OrderForms then in effect: (ii) the other party commits any material breach of these Terms and Conditions and fails to remedy such breach within thirty (30)days after written notice of such breach, provided, however, that if such breach is capable of remedy but cannot be remedied within such period and the breaching party initiates actions to remedy the breach and thereafter diligently pursues such actions, the breaching party shall have such additional period as is necessary in the circumstances to cure the breach; or (iii) if the other party experiences an Insolvency Event.
8.3 Consequences of Termination. Following termination of an Order Form for any reason: (a) Client shall pay Kosy on demand all sums (not disputed pursuant to Section 3.4) due to it howsoever arising from these Terms and Conditions; (b)subject to Sections 4.4(b) and (c), all rights and licences granted under these Terms andConditions shall terminate and Client’s access to the Services relevant to thatOrder Form shall be disabled; (c) each party shall promptly return to the other or otherwise dispose of (as the other party may instruct), all materials, documents (including Documentation) or papers whatsoever including ConfidentialInformation of the other party which are in its possession or under its control in whatever form they are recorded or stored, including any electronic ordigital storage media; and (d) the parties shall have no further obligations or rights under this Agreement, without prejudice to those which have accrued to either party prior to termination.
8.4 Survival. Upon termination of these Terms andConditions, all Order Forms and all rights and obligations will immediately terminate except that accrued payment obligations and any terms or conditions that by their nature should survive such termination will survive, including the License Restrictions and provisions relating to proprietary rights and confidentiality, disclaimers, indemnification, limitations of liability, termination and the general provisions below. Nothing in this Section will relieve Client of its obligation to pay Kosy any amounts (including Fees) that are due as at the effective date of such termination.
9.1 Records. Client shall keep detailed, accurate and up-to-date records of all payments made to Kosy(“Records”). Records shall be retained by Client for three (3) years after termination of these Terms and Conditions. Kosy and/or its third party representatives (including designated auditor), may on reasonable notice during normal business hours request copies of, the Records and any other relevant information held by Client. The cost of an audit shall be borne by Kosy, except where an underpayment of amounts payable to Kosy under these Terms and Conditions is identified, in that case, the amounts due and the costs of the audit shall be borne by Client and payable on demand. The rights in this Section shall continue for three (3) years after termination of these Terms and Conditions.
9.2 Publicity. Client agrees that Kosy may refer to Client’s name and trademarks in Kosy’s marketing materials and website; however, Kosy will not use Client’s name or trademarks in any other publicity (including press releases, customer references and case studies) without Client’s prior written consent (which may be given by email).
9.3 Assignment and Delegation. Neither party hereto may assign or otherwise transfer these Terms and Conditions, in whole or in part, without the other party’s prior written consent, except that Kosy may assign these Terms and Conditions without consent to an Affiliate or a successor to all or substantially all of its assets or business related to these Terms and Conditions. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null or void. Subject to the foregoing, these Terms and Conditions will be binding on the parties and their successors and assigns.
9.4 Amendment and Waiver. No amendment or modification to these Terms and Conditions, nor any waiver of any rights hereunder, will be effective unless agreed to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of these Terms and Conditions will not be deemed a waiver of future enforcement of that or any other provision.
9.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties and pursuant to the Contracts (Rights of Third Parties)Act 1999 or otherwise.
9.6 Unenforceability. If a court of competent jurisdiction determines that any provision of these Terms and Conditions is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of these Terms and Conditions will remain in full force and effect and bind the parties according to its terms.
9.7 Governing Law and Jurisdiction. Each party irrevocably agrees that theseTerms and Conditions (and any non-contractual obligations arising out of or in connection with them and any claim or dispute in relation to their formation)shall be interpreted and governed by the laws of England, and subject to the exclusive jurisdiction of the courts of London, England.
9.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, by overnight delivery or by email. Notices to the parties must be sent using the details stated in the relevant Order Form.
9.9 Entire Agreement. TheseTerms and Conditions and all Order Forms constitute the entire agreement and understanding between the parties relating to their subject matter and supersede any previous agreements, discussions, correspondence, negotiations, drafts, promises, assurances, warranties, representations and/or undertakings between the parties including any usage or custom and any terms arising through any course of dealing relating to such subject matter.
9.10 Non-Reliance. Each party agrees that in entering these Terms and Conditions all statements, representations, warranties and undertakings on which it relies are incorporated into these Terms and Conditions and it does not rely on (and shall have no remedy in respect of) any statement, representation (including any misrepresentation), warranty or undertaking(whether negligently or innocently made) of any person (whether party to theseTerms and Conditions or not) (in each case whether contractual or non-contractual) which is not expressly set out in these Terms and Conditions.Without prejudice to: (a) any other provision of these Terms and Conditions limiting the remedies available to either party, each party agrees that it will have no remedy in relation to these Terms and Conditions for innocent or negligent misrepresentation, negligent misstatement or mistake based on any statement in or made in relation to these Terms and Conditions; and (b) the indemnification obligations contained herein and either party’s ability to seek injunctive or equitable relief in any court of competent jurisdiction for actual or threatened misuse of its Intellectual Property or ConfidentialInformation, the only remedy available to each party in relation to any breach of these Terms and Conditions shall be for damages for breach of contract under the terms of these Terms and Conditions.
9.11 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption, delay or failure in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labour controversy, civil disturbance, terrorism, war(whether or not officially declared), pandemic, cyber-attack (including denial of service attacks), failure of any third party or Client software, hardware or communications network, or any change in or the adoption of any law, regulation, judgment or decree. Other than as expressly required herein, Kosy shall not be obliged to take any action to prevent or mitigate Force Majeure Events.
9.12 Interpretation. Any words following the terms ‘including’,‘include’, ‘in particular’, ‘for example’, ‘i.e.’, ‘other’ and ‘otherwise’ or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. In the event of any conflict between the Sections of these Terms and Conditions, the documentation incorporated into these Terms and Conditions by reference and any Order Form, the Order Form shall prevail, followed by the documentation incorporated by reference and finally these Terms and Conditions. References to Sections are to sections in these Terms and Conditions and headings shall not affect the interpretation of these Terms and Conditions. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. A reference to a party includes that party’s personal representatives, successors and permitted assignees. Unless the context requires otherwise, words in the singular include the plural and vice versa and a reference to one gender shall include a reference to the other genders. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and includes all subordinate legislation made from time to time under that statute or statutory provision. A reference to these Terms and Conditions or to any other agreement or document referred to in this Agreement is a reference to these Terms and Conditions or such other agreement or document as varied ornovated (in each case, other than in breach of the provisions of thisAgreement) from time to time. A reference to writing or written includes e-mail but not fax. When a number is expressed both in words and numbers, in the event of a conflict the words shall be deemed correct.