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KONY, INC. PLATFORM SOFTWARE LICENSE AGREEMENT

By clicking the agreement checkbox on the Kony Cloud Checkout page, you acknowledge that you have read and understand the Kony, Inc. License Agreement and that you have had opportunity to seek independent legal advice on the same and consequently agree to abide by all its terms and conditions. If you are entering into this agreement on behalf of a company or other legal entity then you acknowledge and affirm that you have the authority to enter into such agreement and bind your company or other legal entity, and all persons who use this service under such authority.

If you do not agree to the terms and conditions of the Kony, Inc. License Agreement then you must uncheck the agreement checkbox on the Kony Cloud Checkout page.

Subject to the terms and conditions provided in this License Agreement ("Agreement") Kony, Inc. ("Kony") will provide you ("you") with access to the Kony™ Platform ("Technology") to enable only you, on behalf of your company, to create customized mobile business applications ("Application").

1. License and Ownership

1.1 Kony grants you a personal, revocable and worldwide license to use the Technology, subject to the terms and conditions in this Agreement, on a non-exclusive and non-transferable basis only for your own internal business or personal purposes, as set forth in this Agreement.

1.2 You acknowledge that Kony is and shall remain the owner of all the rights, title and interest in the Technology and the license granted under this Agreement is only for use of the Technology to the extent and in the manner expressly provided herein. You shall not reproduce, copy, market, sell, distribute, lease, transfer, sub-license, translate, modify, adapt, disassemble, decompile or reverse engineer (except as allowed by law) the Technology. All services provided to you under this Agreement, including methods, processes, notes, designs, code, documentation, memoranda, and other data or materials that are prepared in the performance of such services hereunder, and all right, title and interest in the foregoing, will belong to Kony.

2. Rights, Responsibilities and Warranties

2.1 You are responsible for all activities that take place under your account and will abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Technology, including those related to data privacy, international communications and the transmission of technical or personal data. You will:

(a) notify Kony immediately (and Kony will also notify you) of any unauthorized use of any password or membership ID or any other known or suspected breach of security;

(b) report to Kony immediately and use reasonable efforts to immediately stop any copying or distribution of Technology that you become aware of or suspect; and

(c) not impersonate another user or provide false identity information to gain access to or use the Technology.

2.2 You are solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or the right to use any of the data, information or material that you incorporate into your Applications. You must exercise due care and ensure that in developing and customizing your applications, third party intellectual property rights are not infringed.

2.3 You represent and affirm that you have the legal power and authority to enter into this Agreement and that you have not previously entered into any agreement or understanding which conflicts with any rights or obligations set forth in this Agreement.

2.4 You represent and warrant that all information provided by you in connection with your registration, is accurate and reliable, that you have not falsely identified yourself nor provided any false information to gain access to the Technology and that the use of the Technology and your Applications do not directly or indirectly infringe the legal rights of any third party.

2.5 You warrant that you will not:

(a) license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, the Technology or the user account in any way;

(b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

(c) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including materials that violate third party privacy rights;

(d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

(e) interfere with or disrupt the integrity or performance of the Technology or the data contained therein; and

(f) attempt to gain unauthorized access to the Technology or its related systems or networks.

(g) choose a URL (partial or otherwise) that impersonates another, use a URL You do not have the right to use, use a URL name that is considered offensive. Kony, at its sole discretion, has the right to rename a cloud or cloud URL.

(h) disable, alter or otherwise circumvent any reporting capabilities or platform Technology feature that enables Kony to monitor end user usage levels;  

2.6 While security cannot be guaranteed, Kony has taken adequate safeguards related to technical & organizational measures and is certified to ISO 27001 standards.

3. Fees & Payment

You will be charged a monthly license fee for the license granted hereunder. The monthly license fee will be charged to a credit card that you give Kony permission to charge. You will provide Kony with valid and current credit card information during the registration process. By accepting the terms of this Agreement, you expressly authorize Kony to charge such credit card for the initial monthly subscription term and any renewal subscription term(s) thereafter. Such charges shall be made monthly, in advance. You are responsible for providing complete and accurate billing and contact information to Kony and notifying Kony of any changes to such. If for any reason, Kony’s pricing is modified; such modification shall be effective two months after it is released to the public. Charges are non-refundable regardless of actual usage.

If at any point You exceed the license capacity specified in your applicable plan description, You are required to immediately upgrade to a new plan.  If you fail to immediately upgrade to a new plan, You acknowledge that Kony will, at its discretion, either have the right to terminate this Agreement and prevent any further access to the Technology or upgrade You to the new plan and send You an invoice for the upgrade.

4. Kony's Rights and Representations

4.1 Kony represents that it has the legal power and authority to enter into this Agreement and that it has not previously entered into any agreement or understanding which conflicts with any right or obligation set forth in this Agreement.

4.2 Kony represents that it owns or has the right to license the Technology, that there is no claim pending or, to Kony's knowledge, threatened against Kony regarding ownership of Kony's Technology or infringement by the Technology of any existing copyright, patent, trade secret or other intellectual property rights of any third party.

5. Disclaimer

Kony makes no representations, warranties, or guaranties as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of its Technology. The services offered by Kony are provided on an 'as is' and 'as available' basis. Kony reserves the right to withdraw the provision of these services or revise or modify the manner in which they are provided. Kony does not represent or warrant the following:

(a) that the use of the Technology will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;

(b) that the Technology will meet your requirements or expectations or result in revenues or profits;

(c) that any stored data will be accurate or reliable;

(d) that the quality of any products, services, information, or other material purchased or obtained by you through the Technology will meet your requirements or expectations

(e) that the Technology or the servers that make the Technology available are free of viruses or other harmful components.
 

All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed. No advice or information, whether oral or written, obtained by you from Kony shall create any warranty not expressly made herein.

6. Indemnification

You agree to defend, indemnify and hold harmless Kony, its affiliates, directors, officers, employees, and agents from and against any and all losses, liabilities, damages and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) incurred or asserted by any third party arising out of the following:

(a) your use of the Technology otherwise than in accordance with this Agreement;

(b) a claim alleging that your Application infringes the rights of, or has caused harm to, a third party;

(c) a claim, which if true, would constitute a violation by you of your representations and warranties; and

(d) a claim arising from a breach by you.

7. Limitation of Liability

7.1 The liability of Kony shall be restricted to the refund of license fees paid in advance to Kony for the given month of service in which the liability arose.

7.2 Kony shall not be held liable for interruption of their services on account of technical problems relating to the internet. Kony's services are subject to limitations, delays and other inherent problems in the use of electronic communications and the internet. Kony is not and shall not be responsible for any delays, delivery failures, or other damage resulting from such problems.

7.3 You expressly understand and agree that you will not hold Kony, its affiliates and employees liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Kony has been advised of the possibility of such damages), resulting from the following:

(a) the use or the inability to use the service or the Technology or any Application;

(b) the cost of procurement of substitute goods and service resulting from any goods, data, information or service purchased or obtained or messages received or transactions entered into through or from the Technology;

(c) unauthorized access to or alteration of your transmissions or data;

(d) statements or conduct of any third party on the Technology; and

(e) any other matter relating to the Technology.

You further agree that you will not hold Kony liable for any of the following:

(a) interruption of business;

(b) access delays or access interruptions to the web site that hamper your access to the Technology;

(c) data non-delivery, mis-delivery, corruption, destruction or other modification;

(d) unauthorised access to data entered in, or breach of any security mechanisms utilized in, the Technology or in any restricted field; and

(e) events beyond Kony's reasonable control.

7.4 You agree not to hold Kony liable for any loss, direct or indirect, arising out of the malfunction of the applications introduced by any other user of the Technology. Kony is not liable for any third party intellectual property infringement actions, relating to applications introduced by any other user of the Technology.

7.5 Kony provides a mobile application development platform and its customers are controllers of the data. Exercise of rights such as subject access requests, modification, restriction of processing, deletion of data, portability of information will be handled by Kony’s customers.

8. Modifications to the Technology

8.1 Kony reserves the right at any time and from time to time to modify the Technology (or any part thereof) with or without notice.

8.2 Kony may specify from time to time the versions of related products/ software required in order to use the Technology.

9. Modification of the Agreement

9.1 Kony reserves the right to periodically change the terms of this Agreement with or without any prior notice. Without prejudice to this right, when Kony modifies this Agreement, the Kony will post it on the following website. www.kony.com. Further, you will be notified by an email that such posting has been made. If you do not agree to any of the modifications, you may terminate the Agreement and immediately cease all access and use of the Technology. If you do not exercise your rights to terminate the Agreement, after modifications have been made, then you will be deemed to have accepted the modified version of the Agreement within 72 hours from the post of the email.

9.2 You agree that such termination will be your exclusive remedy if you do not wish to abide by any changes to this Agreement. In addition, Kony may at any time introduce separate agreements for users in certain jurisdictions and require those users to agree to such separate agreements.

10. Term and Termination of the Agreement

10.1 The term of this Agreement begins upon registration and will continue on a month to month basis as long as you pay the monthly license fee. Kony or you may terminate this Agreement by notice to either party.

10.2 You acknowledge and agree that Kony may, in its sole discretion, suspend or terminate your account and/or deny you access to, use of, or submission of, all or part of the Technology, without prior notice if you engage in any conduct that the Kony believes:

(a) violates the letter or spirit of any term or provision of this Agreement;

(b) violates the rights of Kony or third parties;

(c) is otherwise inappropriate for continued access and use of the Technology; or

(d) any of your permitted business associates have violated their license agreements with Kony.

10.3 You agree that Kony is not liable to you or any third party for any losses, damages or claims that arise out of such termination.

10.4 Kony reserves the right to suspend or terminate this Agreement and your access to the Technology if you have fallen into arrears. You will continue to be charged fees, during any period of suspension. You agree that Kony may charge any unpaid fees to your credit card. Kony reserves the right to impose a reconnection fee in the event you have been suspended and thereafter request access to the Technology.

10.5 Kony reserves the right to monitor data and activity; communicate with You regarding the operation of Your cloud services via profile information (including, but not limited to email address and phone number), and further reserves the right to communicate to external parties the types of apps, services, etc You are using under this Agreement.

10.6 The following clauses will survive the termination of this Agreement: 7) Limitation of liability, 12) Confidential Information, 6) Indemnification and 13) General Terms

11. Malfunction of Applications

In the unlikely event that an Application does not function in accordance with the user documentation, Kony will make every reasonable effort to correct any identified deficiencies in a timely manner. You agree not to hold Kony liable for any loss that may arise, immediate or otherwise, on account of the malfunction of the applications. You agree that Kony shall not be liable if, for whatever reasons, it is unable to remedy defunct applications.

12. Confidential Information

12.1 The term "Confidential Information" will include any business, operational or technical information provided to you by Kony, that is marked or otherwise identified as confidential or proprietary, or that you know or should know is confidential or proprietary.

12.2 Confidential Information will not include any material or information that:

(a) is or becomes a part of the public domain through no act or omission by the receiving party; and

(b) is demanded by a lawful order from any court or anyone empowered to issue such an order. Each party agrees to notify the other promptly of the receipt of any such order, and to provide the other with a copy of such order and a reasonable opportunity to seek protective measures for the information demanded.

12.3 In respect of the information that you provide Kony with, at the time of registration or otherwise, you agree that such information may be used to better understand your requirement of Kony's services and will not be shared with any third party.

13. General Terms

13.1 Local Laws: You agree to commit no act which, directly or indirectly, would violate any local law applicable to you, including without limitation export and import regulations of other countries.

13.2 Notices: All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses set forth below or delivered in person. The notices shall be deemed to have been given upon the date actually delivered in person or three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.

13.3 Assignment: This Agreement may not be assigned by you without the prior written approval of Kony but may be assigned without your consent by the Kony to an acquirer of assets or a successor by merger or any other person. Any purported assignment in violation of this section will be void.

13.4 Governing Law: This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Texas, without regard to its conflict of law provisions. The parties specifically disclaim the applicability of the U.N. Convention on Contracts for the International Sale of Goods.

13.5 Severability: In the event that any provision of this Agreement is found invalid or unenforceable, it will be enforced to the extent permissible and the remainder of this Agreement will remain in full force and effect.

13.6 Attribution/Third Party Software: THE ABOUTS, FEATURE LICENSES, AND FEATURE UPDATE LICENSES MAY REFER TO THE EPL OR OTHER LICENSE AGREEMENTS, NOTICES OR TERMS AND CONDITIONS. SOME OF THESE OTHER LICENSE AGREEMENTS MAY INCLUDE (BUT ARE NOT LIMITED TO): IT IS YOUR OBLIGATION TO READ AND ACCEPT ALL SUCH TERMS AND CONDITIONS PRIOR TO USE OF THE CONTENT. If no About, Feature License, or Feature Update License is provided, please contact the Eclipse Foundation to determine what terms and conditions govern that particular Content.

13.7 Service Level Terms: The terms and conditions governing SLA’s for this Agreement can be found at http://www.kony.com/service-level-agreement. In the event that the SLAs are not met, SLA credits can be requested by the customer within 60 days by specifying the number of excess hours that occurred above the allowed time for each instance an SLA was not met. A SLA Credit Percentage can be calculated by dividing the mutually agreed upon hours that exceeded the SLA by the total time of the contract. The SLA Credit can be calculated by multiplying the SLA Credit Percentage by the total contract value for the year. Kony reserves the right of final decision on the amount of SLA credits provided, which can then be applied to the customer's account for future annual purchases. SLA credits may not exceed 5% of total contract value and are only applicable to contracts with terms of one year or more.

13.8 Entire Agreement: This Agreement constitutes the complete agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous discussions, representations, and proposals, written or oral, with respect to the subject matters discussed herein.

13.9 Waiver: The failure of a party to prosecute its rights with respect to a breach hereunder will not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.