Subscription agreement

Introduction and Scope

This subscription agreement (“Agreement”) is effective as of the signature date on the applicable End Customer Confirmation form (“End Customer Confirmation”) and such date is the “Effective Date” and is by and between KNEAT SOLUTIONS LIMITED incorporated and registered in Ireland with company number 381335 whose registered office is at Hawthorne House, Plassey Business Campus, Castletroy, Limerick, V94 5F68, Ireland (“Kneat”), and the End Customer as set forth on the Order Form (“Subscriber”, “You” and “Your”) (each a “Party” and together the “Parties”).

Section 1: Use of and Access to the Services

1.1            Subscription Service. During the term of each Service Order, Kneat hereby grants to Subscriber and its Affiliates a worldwide, limited, non-exclusive, non-transferable right and license (“Subscription”) to access and use (together “Use”) the Software for its own internal business purposes, subject to and in accordance with this Agreement. Subscriber shall use such licenses in accordance with the Documentation, to: (a) access and use the Services; (b) implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the Services; and (c) access and use the Documentation.

1.2            Compliance. Subscriber is responsible for compliance with the provisions of this Agreement by End-Users and for any and all activities that occur under an Account, which Kneat may verify from time to time. Without limiting the foregoing, Subscriber will ensure that its use of the Services is compliant with all Applicable Laws and regulations as well as any and all privacy notices, agreements or other obligations Subscriber may maintain or enter into with End-Users.

1.3            Content and Conduct. In Subscriber’s use of the Services Subscriber agrees not to (a) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (b) attempt to bypass or break any security or rate limiting mechanism on any of the Services or use the Services in any manner that interferes with or disrupts the integrity, security or performance of the Services and its components; (c) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; or (d) to the extent Subscriber is subject to the US Health Insurance Portability and Accountability Act of 1996, and its implementing regulations (HIPAA), use the Services to store or transmit any “protected health information” as defined by HIPAA, unless expressly agreed to otherwise in writing by Kneat.

1.4            Hosting.  Kneat shall host the Services and make the Services available to Subscriber via the Internet at a web address to be provided to Subscriber in writing in accordance with the terms hereof (“Hosting”).

1.5            System Requirements. A high-speed Internet connection is required for proper transmission of the Services. Subscriber is responsible for procuring and maintaining the network connections that connect Subscriber’s network to the Services.

1.6            No Competitive Access. Subscriber may not access the Services for competitive purposes or if Subscriber is a competitor of Kneat.

1.7            Temporary Suspension. Kneat reserves the right to restrict functionalities or suspend the Services (or any part thereof), Subscriber’s Account or Subscriber’s and/or End-Users’ rights to access and use the Services and remove, disable or quarantine any Hosted Data or other content if (a) Kneat reasonably believes that Subscriber or End-Users have violated this Agreement; and/or (b) Kneat suspects or detects any Malicious Software connected to a Subscriber’s Account or use of a Service by Subscriber or End-Users. Unless legally prohibited from doing so or where Kneat is legally required to take immediate action, Kneat will use commercially reasonable efforts to notify Subscriber via email when taking any of the foregoing actions. Kneat shall not be liable to Subscriber, End-Users or any other third party for any modification, suspension or discontinuation of Subscriber’s rights to access and use the Services. Kneat may refer any suspected fraudulent, abusive, or illegal activity by Subscriber, Agents or End-Users to law enforcement authorities at Kneat’s sole discretion.

Section 2: Service Levels and Support

2.1            Service. Kneat will make the Services available pursuant to this Agreement and the applicable Service Order(s) and Documentation. Kneat will use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week: (i) except during (a) Planned Downtime; and (b) Force Majeure Events; and (ii) provided that Subscriber’s exclusive remedy for any failure of Kneat meet this Service availability standard is that described in clause 3.2. Kneat reserves the right to monitor and periodically audit Subscriber’s use of the Kneat Services to ensure that Subscriber’s use complies with the Agreement. Should Kneat discover that Subscriber’s use of a Service violates this Agreement or Documentation, Kneat reserves the right to charge the Subscriber, and the Subscriber hereby agrees to pay on demand, for said overuse, in addition to other remedies available to Kneat.

2.2            Modifications. Subscriber acknowledges that Kneat may modify the features and functionality of the Services during the Subscription Term. Kneat shall provide Subscriber with twenty (20) days’ advance notice of any deprecation of any material feature or functionality. Kneat will not materially decrease the overall functionality of the Services purchased by Subscriber during the Subscription Term.

2.3            Updates and Upgrades. Kneat shall develop and deploy Updates and Upgrades as necessary to enhance and maintain the Services. During the Subscription Term, Kneat may update the Services and, or documentation to reflect changes in, among other things, laws, regulations, rules, technology, industry practices and patterns of system use. Kneat updates to the Services and documentation will not materially reduce the level of performance, functionality, security or availability of the Services during the Subscription Term.  Kneat may proceed with Updates to Software operating environment without notification to the Subscriber.

2.4            Extension of Rights to Affiliates. Subscriber may extend its rights, benefits and protections provided herein to its Affiliates and to contractors or service providers acting on Subscriber’s or Subscriber’s Affiliates’ behalf, provided that Subscriber remains responsible for their compliance hereunder and shall be liable for the acts and omissions of such Affiliates as if such acts and omissions were its own.

Section 3: Termination, Breach and Remedies

3.1            Under the terms and conditions of Kneat’s agreement with Reseller (the “Reseller Agreement”), Kneat is entitled to suspend or terminate Your subscription to the Service, Your rights to access and use the Service or Your Account, and remove and discard any Hosted Data if: (a) Kneat is notified by Reseller of Your failure to pay amounts due to Reseller with respect to Your subscription to a Service; or (b) Reseller fails to pay any amounts due to Kneat pursuant to the Reseller Agreement with respect to Your subscription to a Service. You consent to these suspension and termination rights and acknowledge and agree that Kneat shall have no liability to You of any kind with respect to any such suspension or termination. Subscriber sole recourse with respect to any such suspension or termination shall be against Reseller.

3.2            Termination for Cause.  A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured after thirty (30) days from the date of receipt of such notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, assignment for the benefit of creditors and/or has any proceeding taken, with respect to it in any jurisdiction to which it is subject, or any event happens in such jurisdiction that has an effect equivalent or similar to any of the events in this sub-clause (b). Kneat may immediately terminate this Agreement for cause without notice if Subscriber violates or if provision of the Service violates Applicable Law, regulation or court order.

3.3            Following the termination or cancellation of Subscriber’s subscription to the Service and upon Subscriber’s written request, Kneat shall return or destroy, at Your discretion, within ninety (90) days all Hosted Data. Kneat will ensure that Hosted Data included in system back-ups for any such Software are stored in encrypted format and are deleted pursuant to Kneat’s then-current back-up deletion procedure.

Section 4: Confidential Information

4.1            The Parties anticipate that they have already or may acquire or have access to the other Party’s Confidential Information

4.2            The Acquiring Party will neither:

4.2.1         disclose the Disclosing Party’s Confidential Information except as authorized below or by such Disclosing Party in writing; nor

4.2.2         use the Disclosing Party’s Confidential Information for any purpose other than the purpose of this Agreement.

4.3            The Acquiring Party may disclose the Disclosing Party’s Confidential Information:

4.3.1         To its Representatives and to its Affiliates, Subcontractors, and their respective Representatives who need to know such Confidential Information for the purpose of this Agreement and who have contractual obligations that prohibit any disclosure and use of such Confidential Information prohibited by this Agreement.  The Acquiring Party is responsible to the Disclosing Party for any unauthorized disclosure or use of the Disclosing Party’s Confidential Information by any such Persons.

4.3.2         To the extent compelled by Applicable Law.  If permitted by Applicable Law, the Acquiring Party will give the Disclosing Party reasonable advance notice of the disclosure.

4.3.3         In communications to its attorneys, regulators, accountants or others who have a professional obligation to maintain such information in confidence.  The Acquiring Party is responsible to the Disclosing Party for disclosure or use by any such Persons of the Disclosing Party’s Confidential Information not authorized by the Disclosing Party.

4.4            The prohibitions on disclosure and use of each Party’s Confidential Information survive for five (5) years after expiration or termination of this Agreement howsoever arising.  The foregoing notwithstanding, the restrictions on prohibition or use of the Parties’ Trade Secrets (if any) survive for as long as the information satisfies the definition of Trade Secret.

Kneat’s Obligations

Section 5: Sub-Processor and Security of Hosted Data

5.1            Sub-processors. Kneat will utilize Sub-processors who will process Hosted Data to assist in providing the Services to the Subscriber. Subscriber hereby confirms and provides general authorization for Kneat’s use of the Sub-processors. Kneat shall be responsible for the acts and omissions of members of Kneat Personnel and Sub-processors to the same extent that Kneat would be responsible if Kneat was performing the services of each Kneat Personnel or Sub-processor directly under the terms of this Agreement. Subscriber may sign up to receive notifications of any changes Kneat makes to its Sub-processors made available by Kneat from time to time for such purposes.

5.2            Safeguards. Kneat will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Hosted Data for the Services in accordance with the security measures described in Kneat security policies. Kneat’s compliance with the security measures, shall be deemed compliance with Kneat’s obligations to protect Hosted Data as set forth in the Agreement.

5.3            Data Processing Agreement. a copy of Kneat’s Data Processing Agreement can be provided to the Subscriber upon request .

Section 6: Kneat’s Representations and Warranties.

6.1            Warranties. Each Party represents that is has validly entered into this Agreement and has the legal power and authority to do so.

6.2            Kneat Warranties. Kneat warrants that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Hosted Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this clause, Subscriber’s exclusive remedies are those described in clause 3.2 herein. The warranties herein do not apply to any misuse or unauthorized modification of the Services made by Subscriber or its End-Users.

6.3            Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND Kneat EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

Section 7: Compliance with Law

7.1            In the performance of their respective obligations under this Agreement, Kneat and Subscriber shall comply with all Applicable Laws.

7.2            Kneat shall not provide Subscriber with any legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which Subscriber uses the Software, Hosted Data, including those related to data privacy, or medical, pharmaceutical or health related data, or unsolicited advertisements, including opt-in/opt-out laws. Subscriber acknowledges that the Software, Deliverables and Hosted Data may be used in ways that do and do not comply with such laws, rules or regulations and it is Subscriber’s sole responsibility to monitor its compliance with all such relevant laws, rules or regulations.

Section 8: Non-Kneat Services

8.1            If Subscriber decides to enable, access or use Non-Kneat Services, Subscriber’s access and use of such Non-Kneat Services shall be governed solely by the terms and conditions of such Non-Kneat Services. Kneat does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Non-Kneat Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Hosted Data), or any interaction between Subscriber and the provider of such Non-Kneat Services. Kneat cannot guarantee the continued availability of such Non-Kneat Service features and may cease enabling access to them without entitling Subscriber to any refund, credit or other compensation, if, for example and without limitation, the provider of a Non-Kneat Service ceases to make the Non-Kneat Service available for interoperation with the corresponding Service in a manner acceptable to Kneat. Subscriber irrevocably waives any claim against Kneat with respect to such Non-Kneat Services. Kneat is not liable for any damage or loss caused or alleged to be caused by or in connection with Subscriber’s enablement, access or use of any such Non-Kneat Services, or Subscriber’s reliance on the privacy practices, data security processes or other policies of such Non-Kneat Services. Subscriber may be required to register for or log into such Non-Kneat Services on their respective websites. By enabling any Non-Kneat Services, Subscriber is expressly permitting Kneat to disclose Subscriber’s login and Hosted Data to the provider of the Non-Kneat Service as necessary to facilitate the use or enablement of such Non-Kneat Services.

Ownership, Information and Property Rights

Section 9: Property Rights

9.1            Subscriber Property Rights.  Subscriber is the exclusive owner of all Intellectual Property Rights to Subscriber Confidential Information and Subscriber’s Intellectual Property.  Kneat agrees that it shall not use or incorporate Subscriber’s Confidential Information, Hosted Data, or Subscriber’s Intellectual Property (and all tangible and intangible embodiments or derivative works thereof) into any of Kneat’s other products or services.

9.2            Hosted Data is and shall remain the exclusive property of Subscriber or its Affiliates, as applicable.  Kneat will not possess or assert any lien or other right against or to Hosted Data.  The Hosted Data shall not be (a) used by Kneat other than as specified in this Agreement and then only in connection with providing the Services set forth in the applicable Service Order; (b) sold, assigned, leased, disclosed or otherwise provided to, or used or accessed by, third parties by or through Kneat; or (c) commercially exploited by or on behalf of Kneat, its employees or agent.

9.3            Kneat retains all right, title, and interest in Kneat’s Intellectual Property, the Software utilized to provide the Services and, in all copies, enhancements, modifications (regardless of the source of inspiration for any such enhancement or modification and regardless of whether Subscriber has provided input regarding such modifications and/or enhancements), and derivative works of such Software including, without limitation, all rights to patent, copyright, trade secret, and trademark.  No title to or ownership of any Kneat’s Intellectual Property, Software, or rights in patents, copyright, Trade Secret, or other proprietary rights in such Software is conveyed or transferred to Subscriber by virtue of this Agreement, and this Agreement shall not be construed as a sale of any rights in such Software or any copies or portions thereof.

Section 10: Nondisclosure, Publicity, and Use of Subscriber Name or Trademarks

10.1         Neither party may use the other name or company logo without the other party’s prior written consent which shall not be unreasonably withheld, delayed or conditioned.

Risk Allocation

Section 11: Indemnification

11.1         Infringement Indemnification.  Kneat will indemnify and defend Subscriber and its Affiliates for any and all Losses arising from any third-party intellectual property infringement claim regarding the Services provided to Subscriber by Kneat or the use by Subscriber of the Deliverables, Kneat’s Intellectual Property or Kneat’s products and/or Software pursuant to this Agreement. If, as a result of any such claim of infringement, Kneat or Subscriber is enjoined from using any component of the Services, or if Kneat believes that a component of the Services is likely to become the subject of a claim of infringement, Kneat will, at its option and its expense: (a) procure for Subscriber the right to continue using the Services; or (b) modify the Services so that the Services become non-infringing (which modification or replacement shall not adversely affect the applicable specifications for, or the use or operation by Subscriber of, the Services); or (c) if the other options stated are not practicable, discontinue the Services, terminate the applicable Service Order, refund to Subscriber any and all prorated charges paid to Kneat by Subscriber under the terminated Service Order, and release Subscriber from any further liability under that Service Order.  This infringement indemnification does not apply to infringement arising from, (i) Subscriber’s use of the Services in a manner that is contrary to Kneat’s Documentation or Specifications (ii) anything Subscriber provides that is incorporated into the Services or (iii) Kneat’s compliance with any designs, specifications, or instructions provided by Subscriber or a third party at Subscriber’s direction; or (iv) the combination, operation or use of the Services with any product, data, apparatus, or business method that Kneat did not provide and could not reasonably anticipate.  The infringement indemnity offered by Kneat in this clause 11.1: (i) shall terminate on the termination or expiration of this Agreement; and (ii) is the Subscriber’s sole and exclusive remedy in respect to third-party intellectual property infringement claims referred to in this clause.

11.2         Subscriber will indemnify, defend and hold harmless Kneat and its Affiliates and their respective Representatives against any and all Losses arising from third-party Claims to the extent occurring from:

11.2.1      Any breach of Subscriber’s obligations under this Agreement.

11.2.2      Any Fault of Subscriber or its Affiliates.

11.2.3      Subscriber’s Confidential Information, Hosted Data and/or Subscriber’s Intellectual Property

11.3         Procedures for Indemnification

11.3.1      If an Indemnitee becomes aware of a third-party Claim that (if successful) will result in a Loss to be indemnified under this clause, the Indemnitee will promptly notify the Indemnitor in writing (with a copy of the notice to the Indemnitor’s legal counsel).  Failure or delay in giving such notice will not affect the right to be indemnified except to the extent that it prejudices the defense of the Claim.  If the Indemnitor acknowledges that the Claim (if successful) will result in Loss within its obligation to indemnify under this clause, it may assume the defense within fifteen (15) days after receiving the notice of the Claim.  In the meantime, the Indemnitee may take any action that it deems appropriate to protect its interests or those of the Indemnitor, provided it is not prejudicial to the Indemnitor.

11.3.2      If the Indemnitor acknowledges its obligation to indemnify and assumes the defense, it will have both the duty to defend and the right to control the defense.  The Indemnitor will conduct the defense in a prudent manner and will keep the Indemnitee reasonably informed as to the status of the defense.  The Indemnitee will cooperate with the defense and may retain separate counsel at its own expense to participate in, but not control, the defense.  Neither Party may settle a Claim without the consent of the other, and that consent may not be unreasonably withheld or delayed.

11.3.3      If the Indemnitor does not timely assume the defense, the Indemnitee will have the right (but no duty) to defend or settle the Claim at the risk of the Indemnitor.  The Indemnitor will reimburse the Indemnitee for its expenses (including reasonable attorney’s fees) of defending or settling the Claim.

Section 12: Exclusion of Certain Damages and Limitation of Liability

12.1 Kneat is not liable, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise in connection with this Agreement for any: (i) loss of profit; (ii) loss of revenue; (iii) loss of business; (iv) loss of data; and/ or (v) loss of anticipated savings; in each case whether direct or indirect, or for any indirect, special or consequential loss or damage, howsoever arising.

12.2         Kneat’s total aggregate liability in a Contract Year in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise in connection with this Agreement shall not exceed a sum equal to the monies paid by the Reseller to Kneat with respect to Your subscription to the Services in that Contract Year. In this clause “Contract Year” means a period of twelve months commencing on the Effective Date and on each successive anniversary of the Effective Date and ending on the day before each successive anniversary of the Effective Date.

12.3         The limitation of liability provided for herein applies in aggregate to any and all claims by Subscriber and its affiliates, and shall not be cumulative.

12.4         The exclusion of certain damages and liability limit in this clause does not apply to damages for any of the following, and none of the following apply toward the liability limit:

12.4.1       Breach of an obligation of confidentiality or misappropriation of a Trade Secret.

12.4.2      Indemnification obligations, including, without limitation, indemnification related to infringement of Intellectual Property Rights.

General Terms and Conditions

Section 13: Independent Contractor

13.1         Kneat acts solely as an independent contractor.  This Agreement does not create a partnership, joint venture, or any similar relationship between Subscriber and Kneat.  Neither Kneat nor Subscriber has any authority:

13.1.1      to bind, incur any liability on behalf of, or otherwise commit the other or;

13.1.2      to act in any other manner as agent or representative of the other.

Neither Kneat, its Affiliates, its Subcontractors, nor any of their Representatives are employees of Subscriber for any purpose.

Subscriber is solely responsible for determining whether the Services meet Subscriber’s technical, business, or regulatory requirements. Kneat’s business partners and other third parties, including any third parties with which the Services have integrations or that are retained by Subscriber to provide consulting services, implementation services or applications that interact with the Services, are independent of Kneat.

Section 14: Delegation and Assignment

14.1         Subscriber may not assign its rights or delegate its obligations under the Agreement without obtaining Kneat’s prior written consent to such.

Section 15: Severability

15.1         If a provision of this Agreement is held to be unenforceable, the other provisions will remain in effect.  If possible, the offending provision will be modified to the slightest degree necessary to make it enforceable, remaining as close as possible to the Parties’ original intent for the provision.  If not possible, the offending provision will be struck.

Section 16: Contract Interpretation

16.1         The meaning of a provision of this Agreement will be considered in context with other provisions of the Agreement.

16.2         The following principles apply to the construction of this Agreement unless the construction is plainly contrary to the intent of the Parties:

16.2.1      “Including” means “including but not limited to.”

16.2.2      Language that has a generally prevailing meaning is given that meaning unless the Agreement expressly assigns a different one.

16.2.3      Technical terms used in the technical field of the subject of the Agreement are given their technical meaning.

16.2.4      The masculine gender may be treated as feminine, and the feminine gender may be treated as masculine.

16.2.5      Singular words may be treated as plural, and plural words may be treated as singular.

16.3         In computing any period of time under this Agreement, the day of the act, event, or default from which the designated period of time begins to run is not included.  If the Agreement specifies that a period is to run for a certain number of Business Days, only Business Days are included in the count, and the period may not end on any other day.

16.4         The headings of each provision in this Agreement are for reference only and shall not be construed as part of this Agreement.

16.5         This Agreement has been prepared jointly and shall not be strictly construed against either Party.  Each Party hereby acknowledges and agrees that each (a) has read this Agreement in its entirety prior to executing it, (b) understands the provisions and effects of this Agreement, and (c) has consulted with such advisors as it has deemed appropriate in connection with its respective execution of the Agreement.

16.6         Nothing in this Agreement excludes or limits a Party’s liability for any liability which cannot legally be excluded or limited.

Section 17: Choice of Law and Jurisdiction

17.1         The Parties agree to the following country-specific provisions for governing law and venue for all claims and disputes arising out of or relating to the Agreement. The Agreement will be interpreted, construed, and enforced in all respects in accordance with the following laws based on the ship-to address of Subscriber reflected on the Service Order

17.1.1      (a) Where the Subscriber’s ship-to address is in the United Kingdom, a Member State of the European Economic Area, Switzerland, Australia or Singapore then this Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including, without limitation, non-contractual disputes or claims) are governed by and construed in accordance with the laws of Ireland. Each Party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).

17.1.2      (d) For all other locations. The Agreement is governed by the laws of the State of Pennsylvania, U.S.A., without reference to its choice of law rules to the contrary. To the extent permitted by law, choice of law rules, the Uniform Computer Information Transactions Act as enacted, shall not apply. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s intellectual property rights.

17.2         The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to the Agreement.

17.3         To the extent allowed by law, the English version of the Agreement is binding, and other translations are for convenience only.

Section 18: Survival

18.1         The expiration or termination of this Agreement will not extinguish the rights of either Party that accrue prior to expiration, termination or any obligations that extend beyond termination or expiration, either by their inherent nature or by their express terms.

Section 19: No Waiver

19.1         No provision of this Agreement is waived unless the waiver is in writing and signed by the Party granting the waiver.

19.2         No delay in exercising any right, power or privilege under this Agreement will operate to waive completely or partially any present or future exercise of that right, power or privilege.

Section 20: Notice

20.1         Notices to Subscriber. All notices provided by Kneat to Subscriber under this Agreement may be delivered in writing by (a) certified mail, postage pre-paid, return receipt requested; (b) hand delivery; (c) commercial overnight delivery service such as Federal Express or United Parcel Service; to the contact mailing address provided by Subscriber on any Service Order; or (d) electronic mail to the electronic mail address provided for the Account owner.

20.2         Notices to Kneat. All notices provided by Subscriber to Kneat under this Agreement must be delivered in English and in writing by (a) certified mail, postage pre-paid, return receipt requested; (b) hand delivery; (c) commercial overnight delivery service such as Federal Express or United Parcel Service; to

Kneat Solutions

Hawthorn House,

Plassey Business Campus,

Castletroy, Co. Limerick,

V94 5F68, Ireland

Attention: Eddie Ryan

or (d) electronic mail to;

Email: [email protected], CC: [email protected]

20.3         Either Party may change its address for notices by written notice to the other.

20.4         Notice is effective when received.  If delivery of any written notice under this Agreement cannot be made despite the exercise of diligent efforts, the requirement to give notice is excused.

Section 21: Integration and Amendments

21.1         This Agreement, its exhibits and attachments are the final, complete and exclusive expression of all the statements, promises, terms and conditions within its scope and supersedes any prior written or oral agreements within its scope.  In making the Agreement, neither Party relies on any promise or statement made by the other Party, other than those contained in the Agreement, its exhibits or attachments.  No “shrink wrap,” “click wrap,” “click through” or other such terms which are made available by or on behalf of Subscriber shall apply to this Agreement or any Service Order.

21.2         No amendment to this Agreement will be binding on either Party unless it is in writing and signed by each Party or executed in another manner expressly provided by this Agreement.

21.3         In the event of a conflict between the provisions of the exhibits or the attachments to this Agreement and the provisions of this Agreement itself, the conflicting provision(s) of the Agreement shall control over the language in the exhibit or attachments, unless otherwise agreed by the Parties.

 EXHIBIT A

Definitions

A.1.               “Account” means a unique account established by Subscriber to enable its Authorized Users to access and use the Service.

A.2.               “Affiliate” of a Party means any entity that controls, is controlled by, or is under common control with that Party.  One entity is deemed to control the other if and only if it directly or indirectly:

1. owns more than fifty percent (50%) of the equity in the other; or
2. controls more than fifty percent (50%) of the voting rights of the other.

A.3.               “API” means the application programming interfaces developed, made available and enabled by Kneat that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.

A.4.               “Applicable Law” means any statute, law, treaty, rule, code, ordinance, regulation, permit, interpretation, certificate, judgment, decree, injunction, writ, order, subpoena, or like action of a Governmental Authority that applies, as the context requires, to: (a) the Agreement; (b) the performance of obligations or other activities related to the Agreement; or (c) a Party, a Party’s Affiliates (if any), a Party’s Subcontractors (if any), or to any of their Representatives.

A.5.               “Authorized User” means those users authorized to use the Services under the applicable Service Order, including without limitation its employees, agents, contractors, and assignees.

A.6.               “Business Days” means any day except a Saturday, Sunday or a bank or public holiday in Ireland.

A.7.               “Claim” means any claims, demands, lawsuits, proceedings or similar actions.

A.8.               “Hosted Data” means all data or information in whatever form or medium, that Kneat receives from, or otherwise gains access to through, Subscriber or as a result of this Agreement, including, without limitation all data derived by Subscriber, or by Kneat pursuant to its provision of the Services, or originating from third parties and to which Subscriber has received certain rights.  In addition, Hosted Data shall be considered Subscriber’s Confidential Information.

A.9.               “Confidential Information” means information deemed confidential or proprietary by a Party to the Agreement (the “Disclosing Party”), including information deemed confidential or proprietary by virtue of the Disclosing Party’s obligations to another Person, that may be disclosed to, acquired by or on behalf of, the other Party (the “Acquiring Party”) or that may be created by the Acquiring Party that is based on a disclosure of such information received from the Disclosing Party.  For purposes of this Agreement, Confidential Information may include, but is not limited to business processes; research and development plans and results; new compounds and processes; evaluation procedures (including clinical and field testing); product formulations; manufacturing methods; applications to government authorities; pricing or cost; construction plans; sales, marketing, and advertising studies and plans; customer lists; computer information and Software; information subject to a right of privacy; information either Party maintains under a system of protection against unauthorized access; and Personal Data (as such term is defined in the General Data Protection Regulations.  The status of information as Confidential Information is not affected by the means of acquisition or disclosure.  For example, Confidential Information may be acquired by written, oral, or Electronic communication; directly from the Disclosing Party’s Representative or independent contractor, or indirectly through one or more intermediaries; or by visual observation.  Similarly, acquisition or disclosure of information may be either intentional or inadvertent without affecting its status as Confidential Information.  Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information that:

1. Is generally known to the public or becomes generally known to the public by means other than a breach by the Acquiring Party of a contractual, legal, or fiduciary duty of confidentiality owed to the Disclosing Party, its Affiliates, its Subcontractors (if applicable), or any of their Representatives;
2. The Acquiring Party lawfully possessed before acquiring it as a result of this Agreement;
3. Is or becomes available to the Acquiring Party on a nonconfidential basis from a third person that is not bound by any contractual, legal, or fiduciary duty of confidentiality to the Disclosing Party, to its Affiliates, or to the Representatives of the Disclosing Party or its Affiliates; or
4. Is developed entirely by Representatives of the Acquiring Party who have no access to the Disclosing Party’s Confidential Information.

A.10.            “Deliverables” means any materials, software, data, records, reports, notices, documents, drawings, designs, specifications, training materials, information and the like (whether physical, Electronic, magnetic or other form) that Kneat is specifically obligated to furnish Subscriber or that are identified as Deliverables in this Agreement or a Service Order.

A.11.            “Documentation” means the portion of the Services consisting of material in written, printed, or Electronic format, including, the functional design documents, technical reference manual, technical notes, user manuals, application administration guide, and application security administration guide.

A.12.            “Electronic” relates to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.

A.13.            “Fault” means any act or omission of negligence; gross negligence; or willful, wanton, or intentional misconduct.

A.14.            “Force Majeure Event” means any failure or delay in the performance of an affected Party’s obligations to the extent such failure or delay is caused, directly or indirectly, by events beyond the reasonable control of the affected Party including, but not limited to, fire, flood, earthquake, elements of nature or acts of God, labor disruptions or strikes, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, quarantines, embargoes, other similar governmental action, internet service provider failure or delay, Non-Keant services and/or products, and/or acts undertaken by third parties, including without limitation, denial of service attack.

A.15.            “Governmental Authority” means any international, regional, national, federal, state, or local government entity, authority, agency, instrumentality, court, tribunal, regulatory commission or other body, either foreign or domestic, whether legislative, judicial, administrative or executive.

A.16.            “Indemnitee” is a Person with a right to be indemnified under this Agreement.

A.17.            “Indemnitor” is a Person with an obligation to indemnify another Person under this Agreement.

A.18.            “Intellectual Property” means any patent, copyright, trade mark, service mark or trade name, utility model, right in software, right in design, right in databases, image right, moral right, right in an invention, right relating to passing off, domain name, right in confidential information (including trade secrets) or right of privacy, and all similar or equivalent rights in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in all countries in the world.

A.19.            “Intellectual Property Rights” means the rights afforded to Intellectual Property.

A.20.            “Issue” means an instance of failure of the Services to be operative.

A.21.            “Loss” means losses, damages, costs, fees, charges, fine, penalties, liabilities or expenses (including interest, penalties, reasonable attorney or accounting fees, and expert witness fees).

A.22.            “Non-Kneat Services” means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which Subscriber may connect to or enable in conjunction with a Service, including, without limitation, Non-Kneat Services which may be integrated directly into an Account by Subscriber or at Subscriber’s direction.

A.23.            “Person” means an individual or a partnership, corporation, association, limited liability company or other form of organization.

A.24.            “Representative” means an employee, officer, director, or agent.

A.25.            “Security incident” means an event that poses a risk to the confidentiality, integrity, or availability of the Software, or Hosted Data held on the Software. It typically involves unauthorized access, disclosure, modification, or destruction of sensitive data or disruption of normal operations.

A.26.            “Service Order” means Kneat’s generated service order form(s) or online ordering document or process completed, executed or approved by the Reseller managing Subscriber’s subscription to the Service with respect to Subscriber’s subscription to a Service, which may detail, among other things, the number of users authorized to use a Service under Subscriber’s subscription.

A.27.            “Services” means Kneat’s provision of the infrastructure, facilities, hardware, software, API and the application functionality described in the Documentation and the Support, Hosting, Maintenance concerning the provision of that application functionality.  The term “Services” also includes any Updates or Upgrades to the Services to be provided by Kneat.

1. “Services” exclude (a) Non-Kneat Services as that term is defined in this Agreement; and (b) any Additional Features or Associated Services that are not provided under this Agreement or Subscriber’s Service Plan. From time to time, the names and descriptions of the Services or any individual Service may be changed.

A.28.            “Software” means the software programs which will be hosted by Kneat or sub processor.

A.29.            “Sub-processor(s)” means any third-party data processor engaged by Kneat, including entities from Kneat.com, Inc. and Amazon Web Services who receives Hosted Data from Kneat for processing on behalf of Subscriber.

A.30.            “Specifications” are the information that describes the capabilities and functionality of the Services as set forth in the Documentation from time to time.

A.31.            “Subscription Term” identified in a Service Order is the period between a Subscription start and end date during which a Subscription is active and available for use.

A.32.            “Trade Secret” means all information, without regard to form, including, but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, distribution lists or a list of actual or potential customers, advertisers or suppliers which is not commonly known by or available to the public and which information: (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Without limiting the foregoing, Trade Secret means any item of confidential information that constitutes a “trade secret(s)” under the common law or statutory law of the State of New York.

A.33.            “Update” means a set of procedures or new program code implemented by Kneat to correct an Issue in the Services and to allow the Services to continue to function under supported versions of an applicable operating system, or under a newly available operating system, and which may include modifications and enhancements to improve functioning of the Services.

A.34.            “Upgrade” means a new version or release of the Services, or a particular component of the Services, provided by Kneat which improves the functionality or which adds functional capabilities to the Services.  An Upgrade shall include versions or releases of any successor or next generation product to the Services that contains or performs comparable or similar functionality and performance as the Services.