KOMIKO ONLINE SERVICES AGREEMENT
Last Updated: August 2018
This Komiko Online Services Agreement (this “Agreement”) is a contract between the legal entity that you represent (“Company”) and Komiko Ltd (“Komiko”).
BY INDICATING ACCEPTANCE IN THE ONLINE SERVICES’ USER INTERFACE (E.G., CLICK AN “I ACCEPT” BUTTON OR CHECK BOX PRESENTED WITH THESE TERMS), SIGNING AN ORDER FORM THAT LINKS TO THIS AGREEMENT, OR, IF EARLIER, REGISTERING FOR, ACTIVATING, OR USING ANY OF THE ONLINE SERVICES, YOU (THE INDIVIDUAL ACCEPTING THIS AGREEMENT ON COMPANY’S BEHALF) REPRESENTS AND WARRANTS THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT AND BIND COMPANY TO IT. By registering for, activating, or using the Online Services, Company is ratifying this acceptance. Company (and its Permitted Users) cannot use the Online Services if it does not agree to the terms of this Agreement. This Agreement takes effect on the earliest date you accept the Agreement (the “Effective Date”).
Section 1. DEFINITIONS.
When used in this Agreement with the initial letters capitalized, the following terms will have the meanings set forth in this Section 1. Unless stated or context requires otherwise, (A) terms such as “e.g.,”, “include”, includes”, and “including” will be deemed in each case to be followed by the words “without limitation”; and (B) “then-current” means the present time when the applicable right is exercised or performance rendered or measured.
“Acceptable Use Policy” means Komiko’s then-current policy that identifies activities Company is prohibited from doing with the Online Services. The current Acceptable Use Policy is located at: https://www.komiko.com/acceptableusepolicy.html (or any successor), as this policy may be updated by Komiko from time to time.
“Affiliate” means any legal entity that a Party owns, that owns a Party, or that is under common ownership with a Party. “Own” means, for purposes of this definition, control of more than a 50% interest in an entity.
“Change of Control” means, with respect to a Party, any transaction or series of related transactions with a common purpose (including any such transaction(s) of Insolvency) in which, either: (A) a Person or group of related Persons, any one of which is not a Party, who does not control such Party prior to such transaction or series of transactions, subsequently obtains control of a Party by any means, whether by operation of law, acquisition of securities, merger, contract, acquisition of assets, or otherwise; or (B) that Party acquires, by operation of law, merger, acquisition of assets or otherwise, all or any portion of another Person, if that Party is not the surviving Person.
“Company Data” means all: (A) data, including all code, images, text or sound files, content or other materials that Company (or its Permitted Users) Shares with the Online Services; and (B) documents, files, or other output that is created by, or results from Company’s (or its Permitted Users’) use of the Online Services.
“Confidential Information” means non-public information, know-how, and trade secrets in any form, including: information designated as being confidential; information a reasonable person knows or reasonably should understand to be confidential. The following types of information, however marked, are not Confidential Information. Information that: (A) is, or becomes, publicly available without a breach of this Agreement; (B) was lawfully known to the receiver of the information without an obligation to keep it confidential; (C) is received from another source who can disclose it lawfully and without an obligation to keep it confidential; (D) is Feedback; or (E) is independently developed as verified by written documentation.
“Feedback” means, collectively, suggestions, comments, feedback, ideas, or know-how, in any form and relating specifically to the Online Services.
“Force Majeure Event” means an act of God, act of civil or military authorities, war, terrorism (including cyber terrorism), civil disturbance, war, third party employee strike or labor disagreement, fire, flood, transportation contingency, law, regulation, acts or omissions of Internet traffic carriers, any outage of any third party remote computing web services that makes up the cloud computing platform provided by a third party hosting or infrastructure provider, actions, omissions, or orders of any governmental bodies or official thereof in the territory (including the passage of laws or regulations or other acts of government that impact the delivery of the Online Services), other catastrophe or any other cause of like or different kind beyond a Party’s reasonable control and that is not foreseeable.
“Komiko Site” means the Komiko website located at https://www.komiko.com, or any successor or related site that Komiko designates.
“Mailbox” means has the meaning given to it in the Service Description.
“Order Form” means an ordering document or online order that specifies the Online Services to be provided under this Agreement (including any addenda or supplements thereto) that is executed by Company. Company may execute multiple Order Forms. All executed Order Forms will be governed by the terms and conditions of this Agreement and will be a part of this Agreement whether or not attached to it.
“Online Services” means the online service known as Komiko Online (or any successor) that Komiko hosts and operates (or has hosted and operated on its behalf) and to which Company subscribes under an Order Form and Komiko provides under this Agreement, including any of the following Komiko may elect to provide: additions, Updates, upgrades, or offline components.
“Party” means Komiko or Company. “Parties” means, collectively, Komiko and Company.
“Permitted User” means any Person (including a Company Affiliate) that: (A) Company authorizes to access and use (in whole or in part) the Online Services or Company Data; and (B) has not been removed as a Permitted User.
“Person” means any natural person, and any corporation, partnership, joint venture, organization, limited liability company, or other legal entity recognized in any jurisdiction in the world.
“Previews” means preview, beta, other pre-release versions, or new features, functionality or services that Komiko offers to obtain Feedback.
“Privacy Statement” means the then-current privacy statement for the Online Services (as revised by Komiko from time to time). The current privacy statement is located at: https://www.komiko.com/privacystatement.html, or any successor.
“Service Credentials” means a token, account id, user name and password, or other non-public authentication credentials that is assigned to or associated with Company’s (including its Permitted Users’) access to or use of the Online Services.
“Service Description” means a description of the features and functions that are available with the Online Services, as more fully described at: https://www.komiko.com/onlineservicedescription.html, or any successor.
“Service Downtime” means any: (A) scheduled interruptions to the Online Services initiated by Komiko for the purpose of system maintenance or upgrades; or (B) any scheduled or unscheduled interruptions in the Online Services that are initiated by any third party remote computing web services provider hosting the Online Services.
“Share” means to submit, upload, share, post, publish, transmit, display, or otherwise make data, information, or content available on or through the Online Services.
“Subscription Term” means the term of Company’s subscription for the Online Services as set forth in the applicable Order Form.
“System” means the computers, servers, storage, networking equipment, and computing and communications infrastructure and environment from which Komiko hosts or otherwise provides (or has hosted or provided on its behalf) the Online Services.
“Unit Quantity Item” means any Online Services item that is consumed based on actual usage. Examples of Unit Quantity Items include email messages, email auto-replies, or storage.
“Update” means any fixes, updates (which may include revised features or functions, or remove previously-available features), revisions, enhancements, or their derivatives, that Komiko: (A) releases generally to all customers of the Online Services; or (B) provides to Company to address a specific issue (such as workarounds, patches, or bug fixes) with the Online Services. For the avoidance of doubt, Update does not include any new feature, functionality, or service offering that is subject to separate pricing.
Section 2. THE ONLINE SERVICES
2.2 Service Credentials. To access the Online Services, Company must have Service Credentials that are associated with valid email addresses for Company’s Internet domain. Company and its Permitted Users are solely responsible for: (A) maintaining the confidentiality of the Service Credentials; and (B) any and all activities that occur under their Service Credentials or as a result of their accessing or using the Online Services. Company must promptly notify Komiko about any possible misuse of its Service Credentials. Komiko will not be liable for any loss resulting from an unauthorized Person using Company’s Service Credentials. Company could be held liable for losses incurred by Komiko or any other party due to an unauthorized Person using Company’s Service Credentials.
2.3 Service Availability. Komiko will: (A) make the Online Services available to Company pursuant to this Agreement and the applicable Order Form; (B) provide Company with its standard technical support for the Online Services, at no additional charge; and (C) use commercially reasonable efforts to make the Online Services available 24 hours a day, 7 days a week, except for Service Downtime and Force Majeure Events. Komiko will use commercially reasonable efforts to provide Company with advance notification of Service Downtime. Company (including its Permitted Users) will not be able to access or use the Online Services during any Service Downtime.
2.4 Changes to the Online Services. Komiko may, at any time, in its sole discretion, but is not obligated to, make changes to the Online Services, which may include, providing Updates or supplements to the Online Services, adding new features or functionality to the Online Services, providing a new release of the Online Services, discontinuing or deprecating (i.e., stop providing) any previously existing feature or functionality (including any portion thereof) from the Online Services, or discontinuing the Online Services in its entirety. If Komiko, in its discretion, makes changes to the Online Services that include Updates, supplements or adding new features or functionality, this Agreement (as it may be amended from time to time) will apply to such changes unless Komiko and Company agree that other terms which may accompany such changes will apply. For changes that include discontinuing or deprecating previously-existing features or function (in whole or in part) from the Online Services, such discontinuation or deprecation will be conducted in accordance with documentation for the Online Services that Komiko makes generally available on the Komiko Site.
2.5 Service Limits. The Online Services may include usage limits, for example, on the number of Permitted Users who can access or use the Online Services, the size of data storage, how long inactive service accounts are retained, the number of messages available, or such other limitations as specified in the Service Description or Company’s Order Form. Company’s (and its Permitted Users) use of the Online Services is subject to all such limitations.
2.6 Preview Releases. From time to time, Komiko may make Previews available to Company. Previews are provided solely as a convenience for general information purposes only and are not for use in a production or “live operating” environment. Komiko is not liable for any breach or loss if Company uses any Preview in a production or “live operating” environment. PREVIEWS ARE PROVIDED “AS-IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE”, AND ARE EXCLUDED FROM THE LIMITED WARRANTY, AND INDEMNITY set forth in Section 9 and Section 10 of this Agreement. Previews may be subject to separate terms and conditions that Komiko provides with the Preview. Previews may not be covered by customer support. Previews may be subject to reduced or different security, compliance, and privacy commitments, as further explained in the privacy statement and any additional notices provided with the Preview. In choosing to use a Preview, Company is not relying on Komiko delivering any future features or functions, or dependent on any oral or written comments made by Komiko regarding the Preview, future functionality or features or product roadmap. Komiko may change or discontinue Previews at any time without notice. Previews may not work the way the final commercial release, if any, of a Preview will work. Komiko may change Previews for final commercial release, if any. Komiko also may not release a final commercial version of a Preview. A commercial version, if any, may be subject to a separate agreement, and may be subject to a fee even if the Preview was free of charge.
2.7 Trial Offers. Komiko may offer the Online Services to Company on a trial basis, free of charge, for a limited period of time. If Company participates in a free trial, Komiko will make it available to Company for the period of time specified in the applicable Order Form. ANY COMPANY DATA THAT COMPANY (OR ITS PERMITTED USERS) SHARES WITH THE ONLINE SERVICES DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS COMPANY PURCHASES A SUBSCRIPTION TO THE SAME ONLINE SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICE, OR REQUESTS KOMIKO TO EXPORT SUCH COMPANY DATA (FOR WHICH ADDITIONAL CHARGES MAY APPLY), BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING THE PROVISIONS IN SECTION 9 AND 10 OF THIS AGREEMENT, DURING THE FREE TRIAL THE ONLINE SERVICES ARE PROVIDED “AS-IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE”, AND ARE EXCLUDED FROM THE LIMITED WARRANTY, AND INDEMNITY SET FORTH IN THIS AGREEMENT.
Section 3. RIGHTS TO USE, AND RESPONSIBILITIES REGARDING, THE ONLINE SERVICES
3.1 License. Subject to the terms and conditions of this Agreement, Komiko hereby grants to Company (and its Permitted Users) a limited, non-transferable, non-exclusive, revocable license under Komiko’s copyrights, to do the following during the term of this Agreement, all solely within Company’s internal business operations: (A) test or evaluate the Online Services; (B) access, display, use, and otherwise allow Permitted Users to interact with the Online Services consistent with Company’s subscription and solely in those geographic regions where Komiko makes the Online Services available; and (C) access, use, view, or download content that Komiko provides as part of the Online Services, but only as permitted by the Online Services.
3.2 Limitations. Company may not reverse engineer, decompile, disassemble, or work around technical limitations in the Online Services, except to the extent that applicable law permits it despite these limitations. Company may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Company’s use of the Online Services. Company may not rent, lease, lend, resell, transfer, or sublicense the Online Services or any portion thereof to or for any third party.
3.3 Reservation of Rights. The Online Services, including any content that Komiko provides as part of the Online Services, are the copyrighted work of Komiko and its suppliers. As between Komiko and Company, Komiko solely owns the Online Services and any content that Komiko provides as part of the Online Services. The Online Services and content that Komiko provides are licensed, not sold. Komiko reserves all rights not expressly granted in this Agreement. Except for the licenses granted in Section 3.1, no other rights (including implied licenses, rights, or covenants) are granted by implication, estoppel, exhaustion, or otherwise.
3.4 Third Party Materials and Notices. The Online Services may incorporate or interact with third party materials (e.g., code or documentation) that Komiko or its suppliers license to Company under this Agreement. Notices, if any, for any third party materials are included for Company’s information only.
3.5 Permitted Users. Company controls access to the Online Services by Permitted Users and granting administrative rights to a Permitted User to manage Company’s subscription. Company is responsible for the Permitted Users’ use of the Online Services in accordance with this Agreement. For example, Company will ensure Permitted Users comply with the Acceptable Use Policy. If Company designates any of Company’s Affiliates as a Permitted User, such Affiliates will be bound by this Agreement and Company agrees to be jointly and severally liable for any actions of such Affiliate related to their use of the Online Services.
Section 4. COMPANY DATA
4.1 Sharing Company Data. Company can store, process, access, or query Company Data that Company or its Permitted Users Share with the Online Services. Company is solely responsible for the content of all Company Data. Komiko is not liable in any way for the accuracy, quality, integrity, or legality of Company Data or the means by which it is acquired. Company will secure and maintain all rights in Company Data (including any consent from Permitted Users or others whose personal information is included in any Company Data) necessary for Komiko to provide the Online Services to Company without violating any third party rights, or otherwise obligating Komiko to Company, its Permitted Users, or any third party. Komiko does not and will not accept any obligations set forth in any separate license or other agreement that may apply to Company Data. Komiko: (A) does not own, control, or endorse any Company Data; (B) is not liable for any Company Data, including any errors or omissions; and (C) is not responsible for any Permitted Users’ decisions regarding Company Data.
4.2 Komiko’s License to Company Data. By Sharing any Company Data with the Online Services, Company (and its Permitted Users) hereby grants to Komiko a non-exclusive, worldwide, royalty-free, revocable, license, with rights to use, reproduce, transform, reformat, excerpt, aggregate, host, display, perform, and transmit Company Data in any form, media, or technology now known or developed in the future in order to allow Komiko to provide the Online Services including purposes compatible with providing those services.
4.3 Privacy and Security Terms. Komiko will treat Company Data in accordance with the Privacy .
4.4 Ownership of Company Data. As between Company and Komiko, and subject to the license granted to Komiko in Section 4.2, Company retains all rights, title, and interests in and to Company Data.
4.5 Subcontractors. Komiko may hire other Persons to provide limited services on its behalf, such as customer support. Komiko will execute appropriate written agreements with each subcontractor that, among other things, requires such subcontractor to protect Company Data under terms no less restrictive than those set forth in this Agreement. Any such subcontractor (and its respective employees, agents, or contractors) will be: (A) permitted to access Company Data but only on a need-to-know basis in order to deliver the services that Komiko retained the subcontractor to provide; and (B) prohibited from using Company Data for any purpose other than delivering the services that Komiko retained it to provide. Komiko will remain solely responsible to Company under this Agreement for its subcontractors’ use of, or access to, Company Data.
Section 5. CONFIDENTIALITY
5.1 Confidential Information. Previews (including their user interface, features, functions, and characteristics, documentation, and Systems), Company’s participation in any Preview, and the details of any Preview offering are Komiko Confidential Information. Company Data is Company’s Confidential Information. For government customers, this section is subject to applicable trade secret, public records, or similar laws.
5.2 Treatment of Confidential Information.
5.2.1 Disclosure. Komiko and Company will: (A) not disclose the other’s Confidential Information to any third party, except pursuant to Section 5.2.3 or Section 5.2.5; and (B) use and disclose the other’s Confidential Information only for purposes of performing under the Agreement.
5.2.2 Security Precautions. Komiko and Company will: (A) take reasonable steps to protect the other’s Confidential Information, which steps must be at least as protective as those it takes to protect its own Confidential Information; (B) notify the other promptly on discovery of any unauthorized use or disclosure of Confidential Information; and (C) cooperate with the other to help regain control of the Confidential Information and prevent further unauthorized use or disclosure.
5.2.3 Sharing. Either Komiko or Company may disclose the other’s Confidential Information to its representatives (e.g., employees, contractors, advisors, and consultants of either party or their respective Affiliates) only if those representatives have a need to know for purposes of this Agreement. Before disclosing the other’s Confidential Information to a representative, Komiko or Company, as applicable, will ensure each such representative is required to protect Confidential Information on terms consistent with this Agreement. Each party is liable for any unauthorized use or disclosure of Confidential Information by its representatives. Komiko or Company may also disclose the other’s Confidential Information to Permitted Users.
5.2.4 Work Assignments. Neither Komiko nor Company: (A) is required to restrict work assignments of its representatives (or, in Company’s case, any Permitted User) who have had access to the other’s Confidential Information; and (B) can control the incoming information the other will disclose while using the Online Services, or what its representatives (or, in Company’s case, any Permitted User) will remember, even without notes or other aids. Use of information in a representative’s (or, in Company’s case, a Permitted User’s) unaided memories in developing or deploying either party’s products or services does not create liability under this Agreement or trade secret law. Komiko and Company will each limit what it discloses to the other accordingly.
5.2.5 Disclosures Required by Law. Each of Komiko and Company may disclose the other’s Confidential Information if required to comply with a court order or other government demand with the force of law. Before doing so, the disclosing party must seek the highest level of protection available and, when possible, give the other enough prior notice to seek a protective order.
5.3 Length of Confidential Information Obligation. Starting on the day of disclosure and continuing for a period of five (5) years thereafter, neither Party will disclose the other’s Confidential Information to third parties except as otherwise expressly provided in Section 5.
5.4 Cooperation in the Event of Disclosure. Each Party will immediately notify the other Party on discovery of any unauthorized use or disclosure of Confidential Information. Each Party will help the other Party regain possession of the Confidential Information and prevent further unauthorized use or disclosure.
6.1 Rights in Feedback. Providing Feedback is entirely voluntary and at Company’s sole discretion. If Company provides Feedback to Komiko, then Company grants to Komiko, without charge, a non-exclusive, worldwide, perpetual, irrevocable license to make, use, modify, distribute, grant copyright and trade secret sublicense rights to, and otherwise commercialize such Feedback as part of the Online Services or any other Komiko product, technology, service, or any of their components. The license granted to Feedback provided under this Agreement will survive any termination of this Agreement. Company does not and will not accept any obligations set forth in any separate license or other agreement that may apply to Feedback. Company is not liable for Feedback, including any errors, omissions or subsequent developments made in connection with such Feedback by Komiko or any other Person.
6.2 Reservation of Rights; Ownership. Subject only to the express licenses granted in Section 6.1, Company: (A) retains all right, title, and interest in and to the Feedback; (B) reserves all rights not expressly granted; and (C) limits the licenses granted under as set forth in Section 6.1. These licenses do not extend to any technologies that also may be necessary to make or use any Komiko offering, in whole or in part, that incorporates the Feedback, but are not themselves expressly part of the Feedback (e.g., enabling technologies).
6.3 Feedback is not Confidential Information. With respect to Feedback described in this Section 6, Feedback is not Confidential Information even if designated as confidential by Company.
SECTION 7. PURCHASING AND PAYING FOR THE SERVICES
7.1 Pricing and Ordering. Company must acquire and assign the appropriate subscription licenses required for its (and its Permitted Users’) access to and use of the Online Services. Each user that accesses the Online Services must be assigned the appropriate subscription license. All prices for a subscription to the Online Services are subject to change as set forth in Section 8.4.1. Unless otherwise specified in Customer’s Order Form, licenses to the Online Services are purchased as subscriptions. The Online Services are offered on an “as available” basis and Komiko makes no guarantee that a particular quantity of the Online Services will be available at the time of request.
7.2 Service Upgrades or Excess Usage.
7.2.1 Ordering Additional Paid Services. At any time during a Subscription Term, Company may order additional users or add more Mailboxes to its subscription (“Additional Paid Service”) through the Online Services’ user interface. Company must expressly add Additional Paid Services to its subscription. Pricing for Additional Paid Services will be the same price set forth in the underlying Order Form, prorated for the portion of that Subscription Term remaining at the time Company adds such Additional Paid Service to its subscription (“Additional Paid Service Fee”). Any Additional Paid Service that Company orders during a Subscription Term will be added automatically to, and will supplement, amend, and be incorporated into, Company’s applicable underlying Order Form, whether or not attached to such Order Form. Any Additional Paid Service Fee will apply through the applicable underlying Subscription Term and any renewal of a Subscription Term unless otherwise adjusted by Company during a renewal period. Company will pay any Additional Paid Service Fee as and when billed by Komiko.
7.2.2 Excess Usage of Unit Quantity Items. Certain items in the Service Description may be based on usage per unit quantity. The Unit Quantity Items that Company subscribes to are set forth in the applicable Order Form. From time to time during a given month of the applicable Subscription Term, Company’s actual usage of Unit Quantity Items may exceed the amount specified in the applicable underlying Order Form (“Overage”). For any given month in which Company incurs Overage, Komiko will notify Company of that month’s Overage within 5 days after the preceding month ends for which the Overage occurred. The fees for any Overage for a given month will be calculated based on actual usage multiplied by the pricing (as set forth in the underlying Order Form) for the total number of each Unit Quantity Item for which there was Overage (“Overage Fee”). Company will pay any Overage Fees as and when billed by Komiko.
7.3 Fees. Company will pay all amounts specified in Order Forms or any addenda or supplement thereto. All amounts payable under this Agreement will be made without setoff or counterclaim, and without deduction or withholding. Except as otherwise specified in this Agreement or in an Order Form quantities purchased cannot be decreased during the relevant Subscription Term. However, any upgrade of Company’s subscription, including as set forth in Section 7.2.1, or excess use of Unit Quantity Items as set forth in Section 7.2.2 will be subject to additional fees.
7.4 Invoicing and Payment. Komiko will invoice Company in advance, on an annual basis (or in accordance with any different billing frequency stated in this Agreement or the applicable Order Form), for all amounts listed in the Order Form for the Subscription Term. Invoiced amounts are due, and Company will pay such invoiced amounts, net 30 days from the invoice date except as set forth in Section 7.2.1, Section 7.2.2, Section 7.5, or as otherwise provided in this Agreement.
7.5 Overdue Amounts and Late Interest. If any invoiced amount is not received by Komiko by the due date, then, without limiting its rights or remedies, except to the extent prohibited by law, Komiko may: (A) assess a late charge on those amounts which will accrue late interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is less; or (B) condition future subscription renewals on payment terms shorter than those specified in Section 7.4. Komiko may assess late changes under this Section 7.5 regardless of any dispute that Company may have raised about its invoice. Company will pay the late charges as and when billed by Komiko. Komiko may use a third party to collect past due amounts. Company will pay for all reasonable costs incurred by Komiko to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs.
7.6 Disputed Amounts. Company may dispute the amount of any invoice (each, a “Disputed Amount”) by providing Komiko with written notice of a Disputed Amount within thirty (30) days of receiving the applicable invoice. Company’s failure to provide notice within such time period is a waiver of any claim or right with respect to a Disputed Amount. Company will have thirty (30) days from the date a dispute is resolved to pay Komiko.
7.7 Currency. All invoices from Komiko under this Agreement will be expressed and paid in U.S. dollars. Payments made under this Agreement must not be discharged or satisfied by any tender, or any recovery pursuant to any judgment, which is expressed in or converted to any currency other than the full amount expressed in the invoice.
7.8 Refunds. All charges are non-refundable unless expressly stated otherwise, or otherwise required by law.
7.9 Taxes. Prices and charges do not include any applicable value added, goods and services, sales, or like taxes, levies, or similar governmental assessments of any nature (collectively “Taxes”). Company is responsible for, and will pay, any Taxes that are owed with respect to any order placed under this Agreement and which Komiko is permitted to collect from Company under applicable law. Company is responsible for all taxes that Company is legally obligated to pay including any taxes that arise out of the provision of the Online Services to Company’s Affiliates. Komiko will be responsible for all taxes based on its employees, net income or on its property ownership. Company will provide Komiko with any information Komiko reasonably request to determine whether Komiko is obligated to collect Taxes from Company, including Company’s tax identification number. If Company is legally entitled to an exemption from any Taxes, Company is responsible for providing Komiko with legally-sufficient tax exemption certificates for each taxing jurisdiction. Komiko will apply the tax exemption certificates to charges under Company’s account after the date Komiko receives the tax exemption certificates. If any deduction or withholding is required by law, Company will notice Komiko and Company will pay Komiko any additional amounts necessary to ensure that the net amount that Komiko receives, after any deduction and withholding, equals the amount Komiko would have received if no deduction or withholding had been required. Additionally, Company will provide Komiko with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority. Despite any other provision in this Agreement, this section will govern the treatment of all taxes relating to this Agreement.
SECTION 8. TERM, TERMINATION, RENEWAL, AND SUSPENSION
8.1 Agreement Term. The term of this Agreement begins on the Effective Date and will continue until all Subscription Terms have expired or have been terminated, or this Agreement is terminated earlier (the “Term”), all in accordance with the terms of this Agreement.
8.2 Subscription Term. Each Subscription Term will be as specified in the applicable Order Form.
8.3.1 Termination for Convenience. Without prejudice to any other remedies:
(A) Komiko may terminate this Agreement or cancel any subscription to the Online Services, at any time without cause, by giving Company sixty (60) days’ prior written notice, in accordance with Section 12.1 (Notices) and specifying this Section 8.3.1(A) as the basis for termination or cancellation. If Komiko terminates this Agreement in accordance with this Section 8.3.1(A), Komiko will refund Company, on a pro-rated basis, any prepaid fees (including any Additional Paid Service Fee) that Company paid to Komiko for the corresponding unused remaining portion of the Subscription Term for all Order Forms after the effective date of termination or cancellation. In no event will termination of this Agreement or cancellation of a subscription relieve Company of its obligations to pay any fees and charges payable to Komiko for the period prior to the effective date of termination or cancellation.
(B) Company may terminate this Agreement or cancel any subscription to the Online Services, at any time without cause outside of the renewal period set forth in Section 8.4, by giving Komiko prior written notice, in accordance with Section 12.1 (Notices). Any such termination or cancellation will be effective sixty (60) days after Komiko receives Company’s written notice. An early termination or cancellation fee (“Early Termination Fee”) will apply to each subscription if Company terminates it before the applicable Subscription Term ends. The Early Termination Fee will be:
(i) zero dollars ($0.00) if Company terminates a subscription during the renewal period set forth in Section 8.4;
(ii) for subscriptions with a one-year Subscription Term, 50% of the annual billing set forth in the applicable Order Form (as supplemented by any Additional Paid Service Fee or Overage Fee) for the remainder of the applicable Subscription Term if Company terminates such subscription at any time other than during the renewal period set forth in Section 8.4; or
(iii) for subscriptions with a three-year Subscription Term, 25% of the annual billing set forth in the applicable Order Form (as supplemented by any Additional Paid Service Fee or Overage Fee) for the remainder of the applicable Subscription Term if Company terminates such subscription at any time other than during the renewal period set forth in Section 8.4.
Early Termination Fees are part of Komiko’s pricing and are not a penalty. They apply only to the extent permitted by applicable law. Company will remain responsible for all fees and charges through the effective date of termination or cancellation.
8.3.2 Termination for Cause. Either Party may terminate this Agreement for cause: (A) upon thirty (30) days prior written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (B) if the other Party ceases to operate in the ordinary course or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. If Company terminates this Agreement in accordance with this Section 8.3.2, Komiko will refund Company, on a pro-rated basis, any prepaid fees (including any Additional Paid Service Fee), but not any charges that Company paid to Komiko for the corresponding unused remaining portion of the applicable Subscription Term for all Order Forms after the effective date of termination. If Komiko terminates this Agreement in accordance with this Section 8.3.2, Company will pay Komiko any unpaid fees (including any Additional Paid Service Fees and Overage Fees) and charges for the corresponding remaining portion of the Subscription Term for all Order Forms as and when billed by Komiko. In no event will termination relieve Company of its obligations to pay any fees and charges payable to Komiko for the period prior to the effective date of termination.
8.3.3 Regulatory. If Komiko or Company reasonably believe that an actual or imminent change in applicable law could cause material hardship to one or both Parties, then Komiko or Company, as the case may be, will promptly bring that matter to the other Party’s attention. The Parties will then engage in good faith discussions to determine whether this Agreement is required to be amended or terminated.
8.4 Automatic Renewal. Komiko will inform Company by email of any upcoming subscription renewal at least forty-five (45) days prior to the expiration of Company’s applicable then-current Subscription Term. Except as otherwise specified in an Order Form, subscriptions will renew automatically for additional periods equal to the expiring Subscription Term or one year (whichever is shorter) and subject to the renewal pricing set forth in Section 8.4.1, unless Company gives Komiko written notice of non-renewal, in accordance with Section 12.1 and specifying this Section 8.4, within forty-five (45) days of the end of the applicable then-current Subscription Term.
8.4.1 Renewal Pricing. The pricing for a subscription during any automatic renewal term will be the same as the pricing set forth in the applicable Order Form for the immediately prior term (as supplemented by any Additional Paid Service Fee), unless Komiko has given Company written notice of a price increase at least ninety (90) days before the end of that prior term in which case the price increase will be effective upon renewal and thereafter.
8.5 Suspension of Service. Komiko may suspend Company’s (and its Permitted Users’) right to access or use the Online Services if Komiko determines: (A) it is reasonably needed to prevent unauthorized access to Company Data by a third party; (B) Company’s use poses a security risk to the Online Services or any third party, may adversely impact the Online Services or Komiko’s System, may subject Komiko, its Affiliates or any third party to liability, or may be fraudulent; (C) Company does not pay any undisputed amounts due under this Agreement in accordance with the payment terms set forth in this Agreement or any Order Form; (D) Company violates any of the terms of the Acceptable Use Policy; or (E) Company breaches other material terms of this Agreement and fails to rectify such breach within fifteen (15) days after receipt of written notice of said breach from Komiko. Komiko will give Company reasonable notice before it suspends Company’s access to the Online Services, except where Komiko believes immediate suspension is required.
8.5.1 Effect of Suspension.
(B) If one or more of the conditions in Section 8.5 (A), (B), (D), or (E) occur, then a suspension will apply to the minimum necessary part of the Online Services and will be in effect only while the condition or need exists. If Company does not fully address the reasons for the suspension within thirty (30) days (or fifteen (15) days in the case of Section 8.5(D)) after Komiko suspends Company’s (and its Permitted Users’) access to or use of the Online Services, Komiko may terminate Company’s subscription to the Online Services, remove Company’s (and its Permitted Users’) Service Credentials, and delete Company Data without any retention period. Without limiting the foregoing, Komiko may remove Company’s Service Credentials if Company’s use of the Online Services is suspended more than twice in any consecutive twelve (12) month period.
8.5.2 Komiko’s right to suspend Company’s (or its Permitted Users’) right to access or use the Online Services is in addition to Komiko’s right to terminate this Agreement or cancel a subscription pursuant to Section 8.3.
8.6 Company Data Return and Deletion. Company may request Komiko to extract or delete Company Data at any time without cost or liability of any kind whatsoever to Komiko. When a subscription expires or terminates, Komiko will retain any Company Data that was not extracted or deleted for at least ninety (90) days so that Komiko may extract it, except for Previews or free trial offers, where Komiko may delete Company Data immediately without any retention period. Company remains responsible for all storage and other applicable charges during this retention period. Following the expiration of this retention period, Komiko will delete all Company Data, including any cached or back-up copies, within thirty (30) days of the end of the retention period. Komiko has no additional obligation to continue to hold, export, or return Company Data and Komiko has no liability whatsoever for the extraction or deletion of Company Data pursuant to these terms.
8.7 Survival. The following provisions will survive this the end of the Term: Section 4.4 (Ownership of Company Data), Section 4.5 (Subcontractors), Section 5 (Confidentiality), Section 6 (Feedback), Section 7.3 (Fees), Section 7.4 (Invoicing and Payment), Section 7.5 (Overdue Amounts and Late Interest), Section 7.10 (Taxes), any refund or Early Termination Fee set forth in Section 8.3 (Termination), Section 8.6 (Company Data Return and Deletion), Section 8.7 (Survival), Section 9 (Warranties), Section 10 (Indemnification), Section 11 (Limitation of Liability), Section 12 (Miscellaneous), and Exhibit A.
SECTION 9. WARRANTIES AND DISCLAIMER
9.1 Limited Warranty. Komiko warrants that (A) the Online Services will perform materially in accordance with the applicable Service Description; and (B) during the applicable Subscription Term Komiko will not materially decrease the overall security of the Online Services. For any breach of a warranty in this Section 9.1, Company’s exclusive remedies are those described in Section 8.3 (Termination).
9.2 Limited Warranty Exclusions. The limited warranty in Section 9.1 does not apply to: (A) problems caused by accident, abuse, or use of the Online Services in a manner that constitutes a material breach of this Agreement, or results from Force Majeure Events; (B) problems caused by any failure by Company to meet minimum system requirements established and communicated by Komiko in accordance with this Agreement; (C) Previews, trials, or other free offerings; or (D) any combination of sub-clause (A), (B), or (C).
9.3 Disclaimer. OTHER THAN THE LIMITED WARRANTY IN SECTION 9.1, KOMIKO PROVIDE NO WARRANTIES FOR THE ONLINE SERVICES AND KOMIKO’S SYSTEM, AND DISCLAIMS ALL OTHER WARRANTIES (WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE), GUARANTEES, OR CONDITIONS, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, WORKMANLIKE EFFORT, NON-INFRINGEMENT, AND ANY WARANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THESE DISCLAIMERS WILL APPLY EXCEPT TO THE EXTENT APPLICABLE LAW DOES NOT PERMIT THEM. KOMIKO DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDER.
SECTION 10. INDEMNIFICATION
10.1 By Komiko.
10.1.1 Indemnity. Komiko will indemnify and hold harmless Company, from and against any claim against Company by reason of its use of the Online Services as permitted under this Agreement, brought by a third party alleging that the Online Services infringe or misappropriate a third party’s intellectual property rights including those pertaining to patent, copyright, trademark, or trade secret law (a “Third Party IP Claim”). Komiko will, at its expense, defend such Third Party IP Claim and pay damages finally awarded against Company in connection with such claim, including the reasonable fees and expenses of the attorneys engaged by Komiko for such defense, but only if: (A) Company promptly notifies Komiko of the threat or notice of such Third Party IP Claim; (B) Komiko has the sole and exclusive control and authority to select defense attorneys, defend or settle any such Third Party IP Claim; and (C) Company fully cooperates with Komiko in connection with such Third Party IP Claim.
10.1.2 Duty to Correct. If use of the Online Services by Company or its Permitted Users has become, or in Komiko’s opinion is likely to become, the subject of any such Third Party IP Claim, Komiko may at its option and expense (A) procure for Company at Komiko’s sole cost the right for Company (and its Permitted Users) to continue using the Online Services as set forth in this Agreement; (B) replace or modify the Online Services to make it non-infringing; or (C) if options (A) or (B) are not commercially feasible or reasonably practicable as determined by Komiko, terminate Company’s subscription and repay Company, on a pro-rated basis, any prepaid fees (including any Additional Paid Service Fee), but not any charges that Company paid to Komiko for the corresponding unused portion of the applicable Subscription Term.
10.1.3 Komiko will have no liability or obligation under Section 10.1.1 or 10.1.2 with respect to any Third Party IP Claim if such claim is caused in whole or in part by: (A) compliance with designs, data, instructions or specifications provided by Company; (B) modification of any part of the Online Services by anyone other than Komiko; or (C) the combination, operation or use of the Online Services with other hardware or software where the Online Services would not by itself be infringing.
10.1.4 Exclusive Remedy. Section 10.1 (including its sub-clauses) states the sole, exclusive, and entire liability to Komiko and constitutes Company’s sole remedy with respect to a Third Party IP Claim brought by reason of access to or use of the Online Services by Company or its Permitted Users.
10.2 By Company. Company will defend, indemnify, and hold harmless Komiko against any claim brought by a third party against Komiko alleging that Company Data, or Company’s (or its Permitted Users’) use of: (A) a Preview in a production or “live operating” environment; or (B) the Online Services in breach of this Agreement, infringes or misappropriates such third party intellectual property rights or violates applicable law (all such claims or actions collectively, “Third Party Claim Against Komiko”), and will indemnify Komiko from any damages, attorneys’ fees and costs finally awarded against Komiko as a result of, or for any amounts paid by Komiko under a court-approved settlement for a Third Party Claim Against Komiko. Komiko must: (A) notify Company of the threat or notice of such a Third Party Claim Against Komiko, (B) give Company sole control of the defense and settlement of the Third Party Claim Against Komiko (except that Company may not settle any Third Party Claim Against Komiko unless it unconditionally releases Komiko of all liability), and (C) give Company all reasonable assistance, at Company’s expense.
10.3 Exclusive Remedy. The Section 10 states the indemnifying party’s sole and entire liability to, and the indemnified party’s exclusive remedy against, the other Party for any type of claim described in this Section 10.
SECTION 11. LIMITATION OF LIABILITY
11.1 Limitation. EXCEPT AS SET FORTH IN SECTION 11.3, THE AGGREGATE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT IS LIMITED TO DIRECT DAMAGES: (A) FOR PAID ONLINE SERVICES, UP TO THE AMOUNT PAID UNDER THIS AGREEMENT FOR THE INCIDENT GIVING RISE TO THAT LIABILITY DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE, OR (B) FOR ONLINE SERVICES PROVIDED FREE OF CHARGE, EQUAL TO FIVE THOUSAND UNITED STATES DOLLARS ($5,000.00 USD). THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
11.2 Exclusion. Neither party will be liable for indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the Party knew that such damages were possible or foreseeable.
11.3 Exceptions to limitations. The limits of liability in this Section 11 apply to the fullest extent permitted by applicable law, but do not apply to the Parties' obligations under Section 4, Section 5, Section 7, Section 10, or: (A) any violation of the other Party's intellectual property rights; (B) gross negligence or willful misconduct; or (C) any violation of applicable law.
SECTION 12. MISCELLANEOUS
12.1 Notices. Except as specifically set out in this Agreement, all notices will be: (A) in writing (excluding email unless expressly specified) and sent to the contact(s) and location(s) specified on the Order Form; (B) be in English; and (C) deemed given or made on the date received by the addressee. Communications in the ordinary course of business however, (which do not include any notice related to payment, alleged breach, insurance, disputes, or any claims) may be sent by email and legal counsel need not be copied. Each Party must notify the other in writing of any changes to its address.
12.2 Changes to this Agreement. Komiko may periodically modify or change this Agreement solely with prospective effect. If Komiko changes this Agreement, Komiko will notify Company, either through the user interface for the Online Services, in an email message, or through other reasonable means. When changes are made to the Agreement, Komiko will post a new version on the Komiko Site, which will include all changes and a revised “Last Updated” date. If Company does not agree to such a change, Company must stop using at least the specific Online Services affected by the change and the change will not apply to Company. By continuing to access, use, or receive any of the affected Online Services after such a change is posted, Company is bound by the change.
12.3 Governing Law, Jurisdiction and Venue, Attorney Fees.
12.3.1 Governing Law. This Agreement will be governed by the laws of the State of Washington, USA. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement.
12.3.2 Jurisdiction and Venue. IN ANY ACTION (INCLUDING ON APPEAL) TO ENFORCE ANY RIGHT OR REMEDY UNDER THIS AGREEMENT OR TO INTERPRET ANY PROVISION OF THIS AGREEMENT, THE FOLLOWING WILL APPLY: (A) THE PARTIES CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN THE FEDERAL COURTS SITTING IN KING COUNTY, WASHINGTON, UNLESS NO FEDERAL SUBJECT MATTER JURISDICTION EXISTS, IN WHICH CASE COMPANY CONSENTS TO EXCLUSIVE JURISDICTION AND VENUE IN THE SUPERIOR COURT OF KING COUNTY, WASHINGTON; (B) EACH PARTY WAIVES ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS; AND (C) PROCESS MAY BE SERVED ON EITHER PARTY IN THE MANNER AUTHORIZED BY APPLICABLE LAW OR COURT RULE.
12.3.3 Injunctive Relief. The choice of jurisdiction or venue in Section 12.3.2 does not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
12.3.4 Attorneys’ Fees. In any action, suit, or proceeding to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing Party will be entitled to recover its fees, costs, and other expenses (including reasonable attorneys’ fees, costs and expenses, including the costs and fees incurred in an insolvency or similar action) reasonable incurred with such proceeding, or any appeal thereof.
12.4 Disputes. Before either Party (or any of its personnel) files a claim or suit with a federal or state agency, court, or other public forum related to this Agreement, it will provide sixty (60) days’ prior written notice to the other and, within such sixty (60)-day period (or longer, if extended by the Parties’ mutual agreement), the Parties’ authorized representatives will meet (or confer by telephone) at least once in good faith to try to resolve the perceived dispute.
12.5 Construction. If, for any reason, a court of competent jurisdiction finds any part of this Agreement to be invalid, illegal, or unenforceable, that part will be enforced to the maximum extent permissible so as to effectuate the Parties’ intent, and the remainder of this Agreement will continue in full force and effect. This Agreement has been negotiated by the Parties and their respective counsel and will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either Party.
12.6 Assignment or Assumption. Neither this Agreement nor any of the rights or obligations under this Agreement may be transferred, assigned, or assumed by Company, in whole or in part, for any reason, including in connection with any Change of Control, by operation of contract, law or otherwise without Komiko’s prior written consent. Any purported assignment, assumption or transfer in violation of this Section 12.6 is, without limitation, a material breach of this Agreement and is null and void. Subject to the provisions of this Section 12.6, this Agreement will bind and benefit the Parties’ successors and permitted assigns.
12.7 Rights and Remedies Cumulative. Except as specifically provided in this Agreement, the rights and remedies provided in this Agreement are not intended to be exclusive of any other remedy, and each and every remedy will be cumulative and in addition to every other remedy provided under this Agreement or applicable law.
12.8 Waiver. Failure by either Party to enforce any provision of this Agreement will not constitute or be interpreted or construed to be a waiver of future enforcement of that or any other provision of this Agreement and no waiver will be effective unless made in writing and signed by a duly authorized representative of the waiving Party.
12.9 Exports. Each Party will, in its performance of this Agreement, comply with all applicable law relating to the exportation or importation of technology (including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by the U.S. and other governments).
12.10 Independent Parties. Company and Komiko are independent contractors. Neither Company nor its Permitted Users will represent themselves as representatives, agents, or employees of Komiko. This Agreement does not create a joint venture, partnership, agency, fiduciary, or employment relationship between the Parties.
12.11 Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
12.12 Force Majeure. Komiko will not be liable for any failure in performance due to any Force Majeure Event that persists for more than five (5) consecutive days and is continuing. However, a Force Majeure Event will not apply to, and does not excuse, Company’s payment obligations under this Agreement.
12.13 Severability. If any part of this Agreement is held to be unenforceable, it will be deemed replaced by an enforceable provision that matches the intent of the original language as closely as possible. The rest of this Agreement will continue in full force and effect.
12.14 International Availability. Availability of the Online Services, including specific features and languages, varies by country.
12.15 Language. Any translation of the English-language version of this Agreement that Komiko may provide is for convenience only and the English-language version will govern. If Company is domiciled in Canada or France, it is the express wish of the Parties that this Agreement and any associated documentation be executed in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
12.16 Compliance with Law. Komiko will comply with all laws applicable to its provision of the Online Services, including applicable security breach notification laws, but not including any laws applicable to Company, its industry, or the industries of any of its Permitted Users that are not generally applicable to information technology service providers. Company will comply with all laws applicable to Company Data and access to or use of the Online Services, including any laws applicable to Company or its industry.
12.17 Entire Agreement and Order of Precedence. This Agreement (including any Order Form) constitutes the entire agreement between Komiko and Company with respect to the Online Services, and supersedes all other representations, agreements, and understandings, whether oral or written (electronic or otherwise), between Komiko and Company regarding the subject matter contained therein. Any term or condition stated in any documentation regarding Company’s order for the Online Services (excluding any valid Order Form) is void. In the event of any conflict or inconsistency among the following documents the order of precedence will be: (1) the applicable Order Form; (2) this Agreement; and (3) the Service Description.