This End User License Agreement is a legally binding agreement between the purchaser and/or end user (“You”, Subscriber”, “Your”), and Konnektive LLC (“Konnektive”), a Puerto Rico Limited Liability Company, By clicking “select plan”, “activate now”, “submit”, “order now”, or “purchase” to open an account with Konnektive, or any other application made available by Konnektive (“Software”), or by your use of the Software, You acknowledge that You have read, understood and agree to the terms and conditions of this Agreement with Konnektive. If you are unwilling to accept the terms and conditions of this Agreement, you may not use the Software. Your use of the Software is also subject to Konnektive’s Acceptable Use Policy, and any other supplemental terms that may be applicable to the Konnektive subscription service You use. Both Konnektive and Subscriber may be referred to herein individually as a “Party” and/or collectively as the “Parties.”
Konnektive owns, operates and provides certain propriety Software that it will make available to Subscriber on a limited basis, as set forth below, for the provision of a subscription service to be used by Subscriber for, among other things, campaign management and reporting, including associated materials and written documentation (hereinafter referred to as the “Subscription Service(s),” as further set forth below). The Software is made available by Konnektive to the Subscriber through the website located at www.Konnektive.com and www.funnelkonnekt.com (“Sites”).
By signing this End User License Agreement and your completion of the Konnektive purchase order and enrollment to use the Konnektive Service, each party hereto agrees to be bound by the terms and conditions of this Agreement and the attached Exhibits, including the purchase order, all payment terms, policies, practices, rules, standards and guidelines as defined herein (“Policies”) related to the Site and/or the Services, in effect from time to time (collectively, the “Agreement”).
Each Party agrees that any of its representatives, employees, affiliates, members or any person or entity acting on its behalf with respect to the provision of or use of the Services shall be bound by, and shall abide by, the terms of this Agreement. You further agree that you are bound by the terms of this Agreement whether you are acting on your own behalf or on behalf of a third party.
- DEFINITIONS: The following terms are defined for the purposes of this Agreement as follows:
- “Bandwidth” shall mean the amount of data transferred out from the Konnektive servers where Subscriber’s usage of Konnektive is hosted.
- “Subscriber Data” shall mean (i) information input into the Software interface by Subscriber, and (ii) user behavior on Subscriber’s web site captured by the Software on the Subscriber’s behalf, all of which shall be stored on Konnektive’s servers.
- SaaS SERVICES AND SUPPORT.
2.1 This Agreement sets forth the terms and conditions under which Konnektive agrees to license to Subscriber certain hosted Software and provide all other services necessary for the productive use of such Software, including, but not limited to, customization/integration, user identification and password change management, data import/export, monitoring, technical support, maintenance, training, backup and recovery and change management (“Konnektive’s Services”).
2.2. Subject to the terms of this Agreement, Konnektive will use commercially reasonable efforts to provide Subscriber Konnektive’s Services and in accordance with the Service Level Terms defined in paragraph 5.
2.3. As part of the registration process, Subscriber will identify an administrative user name(s) and password(s) for Subscriber’s account (“Authorized User(s)”). Subscriber shall be responsible for (a) providing true, accurate, current and complete information in all material respects; (b) verifying the Authorized User(s) and updating such information on a regular basis; and (c) notifying Konnektive immediately of an unauthorized use of the CRM of which Subscriber becomes aware.
2.4 Konnektive shall have the right to request from Subscriber its certification of compliance with the permitted number of Authorized Users (which are subject to Konnektive’s sole discretion). Where the actual number of users exceeds the permitted number of Authorized Users, Konnektive reserves the right, at its sole discretion, to terminate Subscriber’s account and refuse any and all current or future use of the Services.
2.5 Konnektive reserves the right to refuse registration of or cancel passwords it deems inappropriate.
2.6 If any information provided by Subscriber is untrue, inaccurate, not current or incomplete in any material respect, Konnektive has the right to terminate Subscriber’s account and refuse any and all current or future use of the Services.
2.7 Subject to the terms hereof, Konnektive will provide Subscriber with reasonable technical support services in accordance with the terms set forth in Exhibit A, Paragraph 3.
- RIGHT TO USE.
Subject to and in accordance with the terms and conditions and Policies of this Agreement and payment of all Fees, Konnektive hereby grants Subscriber a limited, non-exclusive, non-transferable, non-delegable license to use the Software and Subscriber Services.
- RESTRICTIONS AND PROHIBITIONS ON USE (SUBSCRIBER POLICY REQUIREMENTS).
Your license for access and use of the Site and Subscriber Services and any information, materials or documents (collectively defined as “Content and Materials”) therein are subject to the following restrictions and prohibitions on use:
You may not:
- Copy, print (except as expressly permitted by this Agreement), republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means any portion of the Site or Services or any Content or Material retrieved therefrom;
- Use the Site or Services or any materials obtained from the Site or Subscriber Services to develop, of as a component of, any information, storage or retrieval system, database, information base, or similar source (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism;
- Create compilations of derivative works of any Content and Materials from the Site or Subscriber Services;
- Use any Content and Materials from the Site or Subscriber Services in any manner that may infringe any copyright, intellectual property right, proprietary right, or proprietary right of Konnektive or any third parties;
- Make any portion of the Site or Subscriber Services available through any timesharing system, service bureau, the Internet or any other technology now existing or developed in the future;
- Remove, decompile, disassemble or reverse engineer any Site or Subscriber Services software or use any network monitoring or discovery software to determine the Site or Subscriber Services plan architecture;
- Use any automatic or manual process to harvest information from the Site or Subscriber Services;
- Use the Site or Subscriber Services for the purpose of gathering information for or transmitting (1) unsolicited commercial email in violation of the CAN-SPAM Act of 2003; (2) email that makes use of headers, invalid or nonexistent domain names or other means of deceptive addressing; and (3) unsolicited telephone calls or facsimile transmissions in violation of any state or federal law, including without limitation, the Telephone Consumer Protection Act of 1991 (“TCPA”)) and any rule changes or amendments thereto;
- 4.10.Use a single account for multiple business entities; and
- 4.11.Export or re-export the Site or Subscription Services or any portion thereof, or any software available on or through the Site or Services, in violation of the export control laws or regulations of the United States.
- Subscriber Data/Ownership. Subscriber’s data (“Subscriber Data”) (which shall also be known and treated by Konnektive as Confidential Information) shall include without limitation: (a) Subscriber’s data collected, used, processed, stored, or generated as the result of the use of the Subscriber Services; (b) personally identifiable information (“PII“) collected, used, processed, stored, or generated as the result of the use of the Services, including, without limitation, any information that identifies an individual, such as an individual’s social security number or other government-issued identification number, date of birth, address, telephone number, biometric data, mother’s maiden name, email address, credit card information, or an individual’s name in combination with any other of the elements listed herein; (c) information input into the Konnektive interface by Subscriber; and (d) user behavior on Subscriber’s web site captured by the Konnektive Service system on the Subscriber’s behalf. Subscriber represents and warrants to Konnektive that it owns or otherwise has the right to use Subscriber Data as contemplated by this Agreement. Except as provided herein under the termination provisions of this Agreement (see Section 13), Konnektive shall acquire no right, title or interest in Subscriber Data as a consequence of this Agreement. All final data produced as a result of the input by Konnektive of Subscriber Data into the Software in connection with the provision of the Subscriber Services (the “IP Rights”) shall be the sole and exclusive property of the Subscriber. Subscriber Data is and shall remain the sole and exclusive property of Subscriber and all right, title, and interest in the same is reserved by Subscriber. Notwithstanding anything set forth herein, Subscriber shall not, as a result of this Agreement, acquire any property or other right, claim or interest, including any patent right or copyright interest in any data, information or technology which is proprietary to or has been licensed to Konnektive which is used to deliver the Subscriber Services, the Software or other technology used to deliver the Subscriber Services, any interim data created therefrom or any of the information, systems, processors, equipment, computer software, derivative works, services marks or trademarks of Konnektive, whether created before, during or after the performance of this Agreement.
- Konnektive’s Data. Subscriber Data specifically does not include any information and/or campaign methodologies generated by the Konnektive system, regardless of whether or not the information or campaign methodology was generated as a result of Subscriber’s use of the Konnektive system. All data that is not Subscriber Data belongs to Konnektive (collectively “Konnektive’s Data”). Subscriber agrees that Konnektive owns all Konnektive’s Data. Subscriber shall have a nonexclusive license to use Konnektive’s Data during the term of the Agreement only as necessary to use the Services.
- Konnektive’s Use of Subscriber Data. Konnektive is provided a limited license to Subscriber Data for the sole and exclusive purpose of providing the Services, including a license to collect, process, store, generate, and display Subscriber Data only to the extent necessary in the providing of the Services. Service Provider shall: (a) keep and maintain Subscriber Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose Subscriber Data solely and exclusively for the purpose of providing the Services, such use and disclosure being in accordance with this Agreement and applicable law; and, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available Subscriber Data for Konnektive’s own purposes or for the benefit of anyone other than Subscriber without Subscriber’s prior written consent. This Section shall survive the termination of this Agreement.
- Data Storage. The Software and Subscriber Data will be hosted on Konnektive servers, unless otherwise agreed by the parties. Konnektive does not warrant that Subscriber’s use of the Services will be error-free. Subscriber acknowledges and agrees that Subscriber is solely responsible to determine whether the Services sufficiently meet Subscriber’s requirements. Unless specifically set forth elsewhere herein, Konnektive is not responsible for Subscriber Data residing on Konnektive servers. If there is unscheduled monthly downtime exceeding one hour three times during the term of this Agreement, Konnektive will promptly credit Client 5% of the next monthly fee. If there is unscheduled monthly downtime exceeding one hour three times during the term of this Agreement, Konnektive will promptly credit Client an additional 5% of the next monthly fee.
- Backup and Recovery of Subscriber Data. As a part of the Services, Konnektive is responsible for maintaining a backup of Subscriber Data and for an orderly and timely recovery of such data in the event that the Services may be interrupted. Konnektive shall maintain a contemporaneous backup of Subscriber Data that can be recovered within two (2) hours at any point in time. Additionally, Service Provider shall store a backup of Subscriber Data in an off-site facility no less than weekly, maintaining the security of Subscriber Data, the security requirements of which are further described herein. Any backups of Subscriber Data shall not be considered in calculating storage used by Subscriber.
- Loss of Data. In the event of any act, error or omission, negligence, misconduct, or breach that compromises or is suspected to compromise the security, confidentiality, or integrity of Subscriber Data or the physical, technical, administrative, or organizational safeguards put in place by Konnektive that relate to the protection of the security, confidentiality, or integrity of Subscriber Data, Konnektive shall, as applicable: (a) notify Subscriber as soon as practicable but no later than twenty-four (24) hours of becoming aware of such occurrence; (b) cooperate with Subscriber in investigating the occurrence, including making available all relevant records, logs, files, data reporting, and other materials required to comply with applicable law or as otherwise required by Subscriber; (c) in the case of PII, at Subscriber’s sole election, notify the affected individuals who comprise the PII as soon as practicable but no later than is required to comply with applicable law, or, in the absence of any legally required notification period, within five (5) calendar days of the occurrence.
- CONFIDENTIALITY; PROPRIETARY RIGHTS.
6.1 Each Party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). As used herein, “Proprietary information” means (i) the terms and provisions of this Agreement and any related documents delivered concurrently herewith; (ii) all computer hardware, all software, all data, reports, analyses, compilations, studies, interpretations, forecasts, records and other materials (in whatever form maintained, whether documentary, computer storage or otherwise) that contain or otherwise reflect information concerning Konnektive the Subscriber or any of their subsidiaries or affiliates, or any portion thereof, that one party or its Agents may provide to the Receiving Party or its Agents in connection with this Agreement, together with all data, reports, analyses, compilations, studies, interpretations, forecasts, records; or (iii) other materials (in whatever form maintained, whether documentary, computer storage or otherwise) prepared by the Disclosing Party receiving Provided Information or its Agents that contain or otherwise reflect or are based upon, in whole or in part, any Provided Information or that reflect the review of, interest in, or evaluation of all or any portion of the transactions contemplated by this Agreement and any related documents delivered concurrently herewith. For the avoidance of doubt, Proprietary Information of Konnektive includes without limitation, non-public information regarding features, functionality and performance of the Site and/or Subscriber Services and any Konnektive Data (as defined in Section 5 of this Agreement). Proprietary Information of Subscriber includes non-public data provided by Subscriber to Konnektive to enable to provisions of the Subscriber Services, including without limitation Subscriber Data (as defined in Section 5 of this Agreement). As used herein, “Agents” means, collectively, the respective directors, employees, controlling persons or attorneys of Konnektive or the Subscriber. As used herein, the term “person” shall be broadly interpreted to include, without limitation, any corporation, partnership, trust or individual.
6.2 The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information in the same manner and to the same degree as it would protect its own Proprietary information, and (ii) not to use (except in performance of the Subscriber Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
6.3 Additionally, the Receiver Party shall ensure that Proprietary Information is disclosed to its employee(s), authorized agent(s) and/or independent contractor(s) on a need to know basis and that all such parties have agreed in writing to be bound by these confidentiality obligations and to use reasonable care, but not less care than they use with respect to their own information of like character.
6.4 Notwithstanding anything in this Agreement to the contrary, Proprietary Information shall not include any information which:
- at the time of disclosure to the Receiving Party is generally available to and known by the public (other than as a result of any disclosure made directly or indirectly or other action or inaction by the Receiving Party or anyone to whom the Receiving Party or any of its Agents transmit or transmitted any Confidential Information);
- becomes publicly available in the future (other than as a result of a disclosure made directly or indirectly or other action or inaction by the Receiving Party or anyone to whom the Receiving Party or any of its Agents transmit or have transmitted any Confidential Information);
- was available to the Receiving Party or its Agents on a non-confidential basis from a source other than the Disclosing Party or any of its Subsidiaries or affiliates or any of their respective Agents providing such information (provided that to the best of the Receiving Party’s knowledge, after due inquiry, such source is not or was not bound to maintain the confidentiality of such information); or
- has been independently acquired or developed by the Receiving Party without violating any of its obligations under this Agreement, provided such independent development can reasonably be proven by the Receiving Party upon written request.
6.5 In the event that a Receiving Party or any of such party’s Agents become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand, valid court order or similar process) to disclose any of the Proprietary Information of the Disclosing Party, the Receiving Party or person under the legal compulsion (the “Compelled Party”) from whom such information is being sought shall, unless prohibited by law, provide the Disclosing Party to whom such Proprietary Information belongs with prompt prior written notice of such requirement, allowing Disclosing Party to take all necessary steps to move to quash or otherwise seek protection of said information from public disclosure. Both Parties will stipulate to any orders necessary to protect said information from public disclosure. In the event that such protective order or other remedy is not obtained, or the other party waives compliance with the provisions hereof, the Compelled Party agrees to furnish only such portion of the Proprietary Information that the Compelled Party is advised by written opinion of its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Proprietary Information.
6.6 Violation of this section shall be considered a material breach of the Agreement and will entitle non-breaching Party to terminate this Agreement without liability to the other Party, and to pursue any and all other remedies available at law or in equity. The breaching Party acknowledges that a breach of this section would cause non-breaching Party irreparable harm and that non-breaching Party shall be entitled to appropriate injunctive relief in the event such breach is threatened or occurs. The non-breaching Party may seek injunctive relief without the necessity of filing a bond or undertaking and may seek injunctive relief without proof of damages. Notwithstanding the foregoing, Konnektive’s total cumulative liability under this Section will not exceed an amount equal to all amounts actually received by Konnektive from Subscriber during the twelve (12) month period immediately preceding any allegation by Subscriber of disclosure of Proprietary Information.
6.7 Upon termination of the Agreement, upon written demand by the Disclosing Party, the Receiving Party agrees that it will promptly return the Proprietary Information to the Disclosing Party, including all copies thereof or, if requested to do so by the Disclosing Party, will destroy the Propriety Information.
6.8 The obligations under this Section shall survive for a period of five (5) years from the date of termination of this Agreement.
- FEES AND PAYMENT.
- Fees. Fees shall be payable by Subscriber to Konnektive pursuant to Exhibit A hereto, which is incorporated into the Agreement by this reference. Konnektive shall have the right to increase the Subscribers fees upon the anniversary of this agreement not to exceed five percent.
- Payment. Subscriber agrees to pay Konnektive all applicable charges as defined in the attached Exhibit A to its account for services provided, in United States dollars, in accordance with the payment policy in effect at the time those charges become due. Subscriber’s account will be debited with corresponding fees, and fees are calculated by the number of customers or transactions, whichever is greater and once the Subscriber reaches a threshold, they may go back one level only when authorized by management of Konnektive. Subscriber agrees to not charge back any of the related fees associated with this account, and any charge backs will result in Subscriber paying associated charge back fees.
- Method of Payment. Subscriber agrees and represents that all information Subscriber provides for the purpose of enrolling as a Subscriber, will be accurate, complete, and current. Subscriber expressly authorizes Konnektive to charge Subscribers credit card, charge card, or debit card, for any and all applicable Account Charges associated with Subscribers account hereunder. If payment cannot be charged to Subscribers credit/charge/debit card, for whatever reason, or if there is a charge-back for any reason, Konnektive reserves the right to either suspend or terminate Subscribers account with Konnektive and the associated Services until the payment is received. If Subscriber provides Konnektive with a credit card, charge card, or debit card that expires during the term of this Agreement, Konnektive reserves the right to charge any renewal card issued to Subscriber as a replacement without any additional Subscriber consent and charges four (4%) percent for credit card processing fees. See Exhibit B.
- Billing. Konnektive will bill its monthly licensing and any recurring fees on date of enrollment and on the same day of each month or on the last day of the respective month, and any special programming requests shall be billed at the time an invoice is generated and submitted to the Subscriber. Transaction counts are calculated from the billing date, to the day prior to the next billing period.
- Failure to Make Payment. Fees shall be due as set forth in Exhibit A. In the event of any failure by Subscriber to make payment, or upon any Subscriber charge-back, Subscriber will be responsible for all reasonable expenses (including reasonable attorneys’ fees) incurred by Konnektive in collecting such amounts plus interest at the rate of the lesser of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law for the actual number of days elapsed. Subscriber shall also be subject to the termination provisions contained in Sections 10 and 11 below.
- No Refunds. 100% of all fees due and paid are NON-REFUNDABLE.
- MUTUAL REPRESENTATIONS AND WARRANTIES.
EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT: (A) IT HAS THE FULL CORPORATE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT, TO GRANT THE LICENSES GRANTED HEREUNDER AND TO PERFORM THE ACTS REQUIRED OF IT HEREUNDER; (B) THE EXECUTION OF THE AGREEMENT BY IT AND THE PERFORMANCE OF ITS OBLIGATIONS AND DUTIES HEREUNDER, DOES NOT AND WILL NOT VIOLATE ANY AGREEMENT TO WHICH IT IS A PARTY OR BY WHICH IT IS OTHERWISE BOUND; (C) WHEN EXECUTED AND DELIVERED, THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATION OF EACH PARTY, ENFORCEABLE AGAINST EACH PARTY IN ACCORDANCE WITH ITS TERMS; (D) THE INDIVIDUAL COMPLETING THE AGREEMENT HAS THE AUTHORITY TO LEGALLY BIND THE PARTY.
- SUBSCRIBER’S REPRESENTATIONS AND WARRANTIES.
In addition to the mutual representations in Section 8 above, Subscriber represents and warrants that:
(a) Subscriber will perform Subscriber’s rights, duties and obligations under this Agreement;
(b) at all times, Subscriber will be in compliance with all applicable local, state, and federal laws, rules and regulations;
(c) Subscriber’s collection and use of Subscriber’s customer’s personally-identifiable information or technical data shall be in compliance with all applicable local, state, and federal laws, rules and regulations, pertaining in any way to the privacy, confidentiality, security, management, disclosure, reporting, and any other obligations related to the possession or use of any of your customer’s personally identifiable information or technical data; including without limitation, the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”); the Telephone Consumer Protection Act (“TCPA”); and relevant card brand rules and Payment Card Industry Security Standards (PCI DSS compliance standards) (collectively “Privacy Laws and Regulations”);
(d) to the extent applicable, Subscriber will comply with all European Union data privacy laws, including without limitation, the General Data Protection Regulation (GDPR);
(e) Subscriber is not currently aware of or subject to any investigation or litigation, either by a government regulator or by a third party as a result of its business or business practices; and
(f) the information you provided to Konnektive is truthful, accurate, complete and not misleading in any material respect.
(g) Subscriber warrants that it will not violate any card rules and regulations as defined by the card brands, otherwise known as Visa, Mastercard, American Express, Discover, and any other card brands that process transaction’s through the Konnektive Software.
Failure to comply with these Representations and Warranties may result in the immediate termination of Subscriber’s account.
10.1 Mutual Indemnification. Each party hereto (“Indemnifying Party”) agrees to indemnify, defend and hold the other party and its members, managers, officers, directors, employees, agents, representatives and permitted successors and assigns (collectively, the “Indemnified Party”) harmless from and against all costs, losses, damages, liabilities and expenses, including, without limitation, reasonable attorneys’ fees, attributable to any claim, proceeding or action (a “Claim”) made by a third party arising out of any breach of any representation, warranty or covenant contained herein by the Indemnifying Party.
10.2 Subscriber’s Indemnification of Konnektive. In addition to its indemnification obligations under Section 10.1 of this Agreement, Subscriber further agrees to indemnify, defend and hold Konnektive and its members, managers, officers, directors, employees, agents, representatives and permitted successors and assigns (collectively, the “Indemnified Party”) harmless from and against all costs, losses, damages, liabilities and expenses, including, without limitation, reasonable attorneys’ fees, attributable to any claim, proceeding or action (collectively “Claims”) arising from (a) any alleged or actual violation by Subscriber of any applicable local, state or federal law, rule, or regulation, including without limitation, the CAN-SPAM Act and/or the TCPA; (b) any alleged or actual violation of card brand rules and regulations, including without limitation, PCI-DSS compliance; (c) the misuse or unauthorized use of Subscriber Service(s), including without limitation, the assignment or transfer of the rights to use the Subscriber Service(s) under this Agreement; (d) the content of any Subscriber data; or (e) any harm to Konnektive’s reputation or professional standing as a result of actions or inactions taken by Subscriber with respect to any obligations undertaken or services received under this Agreement.
10.3. The conditions for the indemnity set forth in paragraph (a) above are that (i) the Indemnified Party must notify the Indemnifying Party in writing promptly upon notice of the Claim; (ii) the Indemnifying Party will be permitted, through counsel mutually acceptable to the Indemnified Party and the Indemnifying Party, to answer and defend such Claim; and (iii) the Indemnified Party must provide the Indemnifying Party information and reasonable assistance at the Indemnifying Party’s expense to help the Indemnifying Party to defend such Claim.
10.4 The Indemnifying Party has the right, but not the obligation, upon written notice of any claims to the Indemnified Party, undertake to conduct all proceedings or negotiations in connection therewith, assume the defense thereof, and if it so undertakes, it also must undertake all other required steps or proceedings to settle or defend any such Claim, including, without limitation, the employment of counsel which must be reasonably satisfactory to the Indemnified Party, and payment of all expenses. The Indemnified Party will have the right to employ separate counsel and participate in the defense of any Claim at its expense. The Indemnifying Party must reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date hereof, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims in respect to any damages related to any Claim.
10.5 The Indemnifying Party may not settle any Claim on the Indemnified Party’s behalf without first obtaining the Indemnified Party’s written permission, which permission will not be unreasonably withheld, conditioned or delayed. In the event that the Indemnifying Party and the Indemnified Party agree to settle a Claim, each Party agrees not to publicize the settlement without first obtaining the other Party’s written permission.
10.6 Any provision herein to the contrary notwithstanding, Konnektive’s total cumulative liability under this Agreement, regardless of the form of action, will not exceed an amount equal to all amounts actually received by Konnektive from Subscriber during the twelve (12) month period immediately preceding the occurrence of any Claim.
10.7 The provisions of this Section shall survive the termination of the Agreement.
- TERM. The initial term period of the Agreement shall be ninety (90) days. This Agreement shall auto renew for one (1) year periods unless either party provides the other party with ninety (90) days advanced notice of termination. License fees shall be paid as set forth in Exhibit A hereto.
Subscriber’s Right to Terminate. Subscriber may terminate this Agreement if: i) Subscriber determines that Konnektive has made a material misrepresentation of this Agreement; ii) Konnektive is in default of any of its material obligations to Subscriber under this Agreement; iii) or if Konnektive breaches any warranty or covenant under this Agreement. If Subscriber wishes to terminate this Agreement for any such reasons, Subscriber shall give Konnektive no less than thirty (30) days written notice of such intended termination, which shall state the specific reasons of such termination. Konnektive shall have thirty (30) days from the date of its receipt of such notice to remedy and correct the issues addressed by such termination notice. If Konnektive can resolve such issues within that time period, the termination notice shall be void and of no effect and this Agreement shall continue in full force and effect.
- Konnektive’s Right To Terminate.
- Non-Renewal. Konnektive may terminate the Agreement, in its sole and reasonable discretion, in advance of any renewal term by providing written notice to Subscriber of its intention not to renew pursuant to Section 11. Konnektive may terminate any annual term upon at least sixty (60) days written notice to Subscriber prior to the end of the current term.
- Termination for Cause. In addition, notwithstanding anything contained in the Agreement to the contrary, Konnektive may, immediately terminate your account at any time during the term of the Agreement, and discontinue your participation in the Service, if Konnektive reasonably believes that your conduct may be harmful to its business. Reasons for such termination may include, but are not limited to, the following: (Ii) failure to make any payments due hereunder in a timely manner in accordance with Konnektive’s terms, (ii) if Konnektive reasonably believes that Subscriber is in violation of Section 21 of this Agreement, (iii) if Konnektive reasonably believes that Subscriber violated the Agreement or other policies or guidelines of Konnektive; (iv) if Konnektive reasonably believes Subscriber’s conduct may be harmful to others who participate in the Service; or (v) if Konnektive becomes aware of any investigation or action taken by a regulatory agency or law enforcement against Subscriber.
- Effect of Termination.
- Effect of Termination under Sections 12or 13(a). Upon termination under Sections 12 or 13(a) of the Agreement, Subscriber will no longer be able to access its account. However, at the request of Subscriber, within thirty (30) days of termination Subscriber Data may be requested and transferred to a PCI Level 1 certified provider. Regardless of which party terminates the Agreement, Subscriber will be responsible for all charges incurred up to and through the date of termination, However, if Subscriber terminates agreement, payment obligations during the remainder of any unexpired initial term or renewal term will be immediately due in full. Upon any termination of the Agreement, Konnektive reserves the right to delete any and all information in Subscriber’s account, at Konnektive’s discretion at any time after the date that is thirty (30) days after the termination of the Agreement; provided that Konnektive if requested by Subscriber, must return to Subscriber any such information during such thirty (30) day period in a form reasonably requested by Subscriber and at Subscriber’s expense.
- Effect of Termination under Section 13(b). If Konnektive exercises its right to terminate the Agreement under Section 13(b), above or if Subscriber is delinquent on any payments owed hereunder, Konnektive may choose, in its sole discretion, to exercise its rights under this Section 14(b) by giving Subscriber written notice of such election; provided, that, notice by e-mail to any address provided by Subscriber to Konnektive for billing matters will be acceptable written notice in addition to any other method allowed under Section 27 below.
The Agreement may be modified by the parties only through a written agreement signed by both parties.
Konnektive is granted with Subscriber authorization, a non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Subscriber’s name, logos, trademarks, trade names, service marks, URLs and slogans to advertise, market, promote and publicize the Services and the Software, including the inclusion of Subscriber in Konnektive’s marketing materials and on Konnektive’s “Subscribers and testimonial page”.
- SERVICE LEVEL AGREEMENT.
- Konnektive will supply advanced technical support, at Subscriber’s expense, via phone and email as it pertains to the Konnektive Service as defined in Exhibit A, Paragraph 3.
- If there is unscheduled monthly downtime exceeding one hour twice during the term of this Agreement, Konnektive will promptly credit Subscriber 5% of the next monthly fee. If there is unscheduled monthly downtime exceeding one hour three times during the term of this Agreement, Konnektive will promptly credit Subscriber an additional 5% of the next monthly fee.
- DISCLAIMER OF WARRANTIES.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, SUBSCRIBER EXPRESSLY AGREES THAT SUBSCRIBER’S USE OF THE SITE AND/OR SUBSCRIBER SERVICE IS AT SUBSCRIBER’S OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SITE AND/OR SERVICES ARE AVAILABLE ON AN “AS IS” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ACCURACY, OR IMPLIED WARRANTIES ARISING FROM COURSE OF PERFORMANCE OR COURSE OF CONDUCT AND WE DISCLAIM ANY WARRANTY REGARDING THE AVAILABILITY, ACCURACY OR CONTENT OF THE SITE, SERVICES, AND/ OR INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE SITE AND/OR SERVICES, OR ANY ECONOMIC BENEFIT YOU MAY GAIN FROM USE OF THE SITE AND/OR SERVICES. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU. KONNEKTIVE MAKES NO GUARANTEES, REPRESENTATIONS OR WARRANTIES AS TO THE LEVEL OF LEADS OR SIGNUPS GENERATED THAT SUBSCRIBER CAN EXPECT BY ENTERING INTO THIS AGREEMENT AND SUBSCRIBING TO THE SERVICES.
- APPLICABLE LAW.
The validity, interpretation, construction, and performance of this Agreement shall be governed by and construed in accordance with the internal substantive laws of the Commonwealth or Puerto Rico, without giving effect to its principles of choice of law or conflicts of law thereunder. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against either of the parties in the courts of the Commonwealth or Puerto Rico, San Juan, or, if it has or can acquire jurisdiction, in the United States District Court located in San Juan, Puerto Rico, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be served on either party anywhere in the world. In the event it shall become necessary for either party to take action of any type whatsoever to enforce the terms of this Agreement, the prevailing party shall be entitled to recover all attorneys’ fees, costs, and expenses, including all out of pocket expenses that are not taxable as costs, incurred in connection with any such action, including any investigations, demands, negotiations, mediation, arbitration, litigation, and appeals.
- LIMITATION ON LIABILITY.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT KONNEKTIVE SHALL NOT BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF KONNEKTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. KONNEKTIVE’S TOTAL CUMULATIVE LIABILITY HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY RECEIVED BY KONNEKTIVE FROM SUBSCRIBER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCURRENCE OF ANY SUCH LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF KONNEKTIVE ARISING OUT OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 20 ARE REASONABLE AND ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH SUBSCRIBER’S USE OF THE SOFTWARE AND SERVICES PROVIDED BY KONNEKTIVE HEREUNDER, AND THAT, WERE KONNEKTIVE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CONSIDERATION WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
Subscriber’s right to use the Site and Subscriber Services and Konnektive’s Services is not transferable or assignable. Any username, password or right given to you to obtain information or documents is not transferable or assignable. Notwithstanding the foregoing, either Party may assign the Agreement, and any of its rights hereunder, in connection with the sale of all or substantially all of its assets or stock sale, merger or other corporate reorganization resulting in a change of control, with the prior written consent of the other Party, which should not be unreasonably withheld.
Subscriber agrees that during the term of the Agreement and for two years thereafter, Subscriber will not develop, reengineer Konnektive technology, offer, sell or distribute a competing technology to the Konnektive Service. A competing service is defined as a service that seeks to acquire Subscribers for the purpose of offering a customer relationship management (CRM) or campaign management software system. Notwithstanding anything to the contrary in this Section 22, Subscriber shall be permitted to develop and utilize a service similar to the Konnektive Service solely for use by Subscriber in connection with its own marketing activities, except where Subscriber may pirate, copy, or reengineer Konnektive technology, functionality or intellectual property. Subscriber understands that violation of this clause is grounds for immediate termination of the Agreement by Konnektive with no liability on the part of Konnektive and further Subscriber understands that Konnektive may seek equitable relief to stop the violation and competing activity as well as any other relief available under the law.
- FORCE MAJEURE.
With the exception of Subscriber’s contractual payment of Fees obligation, neither party shall be liable for delays or failure to perform the Services or the Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders or regulations, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the Party whose performance is so delayed shall use commercially-reasonable, good-faith efforts to minimize the effects of such delay and shall resume performance as soon as practicable.
- HEADINGS AND REFERENCES.
Headings of Sections are for the convenience of reference only. Words indicated in quotes and capitalized signify an abbreviation or defined term for indicated words or terms, including those definitions contained in the opening paragraph.
- ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or understandings between the parties with respect to such subject matter.
The terms of Sections 3, 4, 5, 6, 8, 10, 11, 15, 16 and 18 through 27 of these Terms and Conditions shall survive the termination or expiration of the Agreement.
All notices or other communications required or permitted to be given hereunder must be (as elected by the party giving such notice) (a) personally delivered at the address set forth on the signature page hereof, (b) transmitted by postage prepaid mail to the address set forth on the signature page hereof or (c) faxed to the party at fax number set forth on the signature page hereof. Except as otherwise specified herein, all notices and other communications will be deemed to have been given on (x) the date of receipt if delivered personally, (y) the date that is five (5) days after posting if transmitted by mail or (z) the date of confirmation receipt if faxed. A party may change its address for purposes of this Section by written notice to the other party in accordance with this Section.
- RELATIONSHIP OF THE PARTIES.
Nothing contained herein will be construed to create a partnership relationship between the parties or the relationship of employer and employee between the parties or between a party or any of such party’s employees or agents and any of the other party’s employees or agents. It is the express intent of the parties that no party is an employee of the other party for any purpose but is an independent contractor for all purposes and in all situations. Each party and its directors, officers, employees and agents may not represent that they are employees of the other party, nor may they in any manner hold themselves out to be employees of the other party.
If any provision of the Agreement is being determined by a court of competent jurisdiction to be invalid or unenforceable, such provision will, to such extent as it is determined to be invalid or unenforceable, be reformed without further action by the parties to the extent necessary to make the provision valid and enforceable and no other provision will be affected or impaired thereby.
This Agreement may be executed in separate counterparts (each of which is an original and all of which will be deemed one and the same instrument) and will be fully effective as of the date executed copies are exchanged between the parties. Counterparts may be executed either in original or faxed form and the parties adopt any signatures received by a receiving fax machine as original signatures of the parties.
IN WITNESS WHEREOF, the parties have executed the Agreement on the date set forth on the first page hereof.
Signed this date:
Name: Name: Matthew Martorano
Title: Title: CEO
Address: Address: 2421 Calle Laurel
C/S/Z: C/S/Z: San Juan, Puerto Rico 00913
Country: Country: United States of America
Standard License Fees
Konnektive Standard License Fees. In consideration for payment of the fees due and compliance with the Agreement, Konnektive shall provide you with access to the Konnektive Services, which include the features listed on the Site. Upon the parties’ acceptance of this Agreement, the initial license and setup fees are due and are nonrefundable. Capitalized terms used in this Exhibit A, but not defined in this Exhibit A, are used herein as defined in the Terms and Conditions to which this Exhibit A is attached. The license and set-up fees are as follows:
Setup Fee: WAIVED
Monthly License Fee(s)
0-500 transactions per month: $ 499.00
500-1,000 transactions per month: $ 999.00
1,001-25,000 transactions per month: $ 1,499.00
25,001-100,000 transactions per month: $ 2,499.00
100,001+ transactions per month: $ 4,999.00
API integration(s): By Quote
Custom Development*. Custom programming and development is billed by Konnektive to Subscriber at $150.00 per hour, plus travel and related expenses, if necessary, with a 4-hour minimum. Any work requested by Subscriber will be subject to the hourly rate. All scope and quotes will have a $200 deposit required prior to the quote being started or the API being looked at. Should Subscriber proceed with the quote, the $200 deposit will apply to cost of development.
Support*. Konnektive will provide incident-based help desk phone and email support for all technical issues/questions in connection with the Agreement that arise during the term of the Agreement. Administrative tasks to the software or general configuration of the Konnektive Services system in each case by Konnektive on behalf of Subscriber that are not tied directly to technical issues in connection with the Services will be billed to Subscriber at $60/hour (1-hour minimum).
Konnektive provides an implementation worksheet and a product set-up worksheet. Konnektive’s setup responsibilities shall include; products, campaigns, and affiliates; merchant accounts, and decline salvage; SMTP email auto-responder; fulfillment house; user set-up; and any related plugins. It is the sole responsibility of the Subscriber to ensure a timely return of the documentation, and no work shall begin until all documentation is returned. Konnektive shall not be held responsible for delays in work, and a strict time record shall be maintained. It is important to note that a license for access to Konnektive is issued immediately, and regardless of the status, all licensing fees shall become due and billable at the monthly anniversary of your enrollment. All licensing fees are paid prior to use, and such fees are not subject to refund, and once a threshold is reached, that is the license fee until the next level is attained.
* Hourly rates are subject to change, and any changes in fee shall be communicated in writing at least thirty (30) day prior to rate increases taking effect.EXHIBIT B
Optional Add-On Services
Konnektive Provides various Add-On services, either provided internally or through third-party providers that the Subscriber can select from time to time. These services shall be billed to the Subscriber’s account on file for the services activated and utilized by the Subscriber. Such services are optional and shall include, but are not limited to:
Fraud Manager Screening, NMI/Fluid Pay Gateway, Chargeback Protect: $.20 per transaction
Al A Carte Services:
Fraud Manager – Kount Fraud Screening: $.10 per screening
Gateway Services: $.10 per transaction/$5.00 per account
3D Secure – Visa/MasterCard Verification Services: $.15 per transaction
Account Updater: $1.50 per updated account (plus any network fees)
Social Proof JS Plugin: $10.00 per website monthly
Chargeback Protect: $5.00 per blocked transaction