This Software as a Service Subscription Agreement (the “Agreement” or “SAAS Subscription Agreement”) has been entered into by and between you as an individual or the business entity or organization indicated in the Customer Order which you validly represent (“you” or the “Customer”) and Kontakt.io Inc., a Delaware Corporation, and its directly and indirectly wholly owned subsidiaries (“Kontakt.io”), both hereinafter referred as “Parties” or individually as a “Party”.
In consideration of the payment by the Customer to Kontakt.io of the charges specified while placing the Customer Order, Kontakt.io grants to the Customer (including Customer’s present and future subsidiaries and affiliates, and their respective successors and assigns) access and use of the certain Services in accordance with the following terms and conditions:
1.1. “API constitutes a set of routines, protocols, and tools for accessing data and/or building software applications.
1.2. “Beacon” is a hardware product produced by Kontakt.io or third parties that enables the use of the Software or contributes to the generation of data accessible through the API. Beacons emit signal but do not generate data.
1.3. “Beacon Infrastructure Management” shall refer to, among others, management of the data and settings necessary for the operation of a Beacon including the transmission power, chosen protocols such as eddystone or iBeacon along with associated parameters and last recorded battery life.
1.4. “Customer Data” is data the Customer inputs for the purpose of using the Services or facilitating use of the Services or data gathered by Kontakt.io while providing Beacon Infrastructure Management and Location Engine Services.
1.5. “Customer Order” is the order placed via our online store at the Website, Web Panel, e-mail or a pre-prepared payment order link sent to you by one of our agents that shall determine the scope and price of the subscription fee in connection with the Services being offered under this Agreement.
1.6. “Effective Date” is the date when you purchase Services by completing the Customer Order and therefore enter into this Agreement.
1.7. “Gateway” is a hardware product produced by Kontakt.io or third parties that enables the use of the Software. Gateway tracks and monitors Beacons, collects and processes the data emitted by Beacons and uploads it to cloud.
1.8. “Location Engine” shall mean data collected beyond the Beacon Infrastructure Management including but not limited to distance of a Beacon to a receiver such as the Gateway, and virtual zone or a telemetric data provided by the Beacons (including but limited to temperature, acceleration, location and ambient light).
1.9. “Mobile Applications” are Kontakt.io application software designed to run on a mobile device, such as a smartphone or tablet computer.
1.10. “Services” include access and use of Software, installed, operated and maintained by Kontakt.io using, apart from the Mobile Application, computer systems owned or operated by or for Kontakt.io.
1.11. “Software” shall include Beacon Infrastructure Management and/or Location Engine, as selected by Customer in its Customer Order as well as a combination of current and future features of the API, the Web Panel, Mobile Applications, and Software Development Kits.
1.12. “Software Development Kits” are a set of software development tools used to create applications for software packages, software frameworks, hardware platforms, computer systems, video game consoles, operating systems, or similar development platforms.
1.13. “Web Panel” is the interface provided by Kontakt.io that allows Customer to manage certain Services in a single place on the Website and purchase certain Services and pay Subscription Fee.
1.14. “Website” shall mean http://www.kontakt.io.
2.1. Pursuant to this Agreement, Kontakt.io grants Customer a non-exclusive and, unless otherwise specified herein or in the applicable Customer Order, non-transferable right of access to and use of the Services including Beacon Infrastructure Management and / or Location Engine, for the time period and on conditions indicated herein and in the respective Customer Order.
2.2. The Services and Software may only be used with regards to Beacons purchased from Kontakt.io with the exception of Location Engine which can be used with Beacons purchased from other parties, although no compatibility is guaranteed in such case.
2.3. In consideration for the Services, unless otherwise provided in the Customer Order, Customer shall timely pay that certain subscription fee in the amount and subject to the payment schedule that shall be set forth in the Customer Order (the “Subscription Fee”).
2.4. Unless otherwise stated in the Customer Order, the deployment of the Software is in a standard format. If Customer requests Kontakt.io to provide any custom modification, consulting, system integration or other services with regards to the Software, the terms for such services shall be separately negotiated and agreed to in writing.
2.5. Kontakt.io reserves the right to upgrade, modify, replace or reconfigure the Software at any time, provided that Customer will be provided at least seven (7) days’ advance notice for changes that significantly affect use of the Software. Kontakt.io may also change the fee schedule, support terms, and service level agreements for the Services subject to at least seven (7) days’ advance notice. Any such notice may be given and shall be effective if provided in an e-mail sent to Customer’s account representative, a notification in the Web Panel, or if included in any amendment, extension or new version of this Agreement.
2.6. For the avoidance of doubt, no Beacons are being purchased under this Agreement and any sale of Beacons without the Services shall be covered under a separate agreement for the purchase of Beacons.
2.7. In case of a bundle deal whereby your purchase Beacons and/or Gateways together with Services via a single Customer Order, you hereby concurrently agree to the Terms of Sale and Service available at https://kontakt.io/terms-of-service/ (the “Terms of Sale and Service).
The Customer shall:
3.1. Use the Services only in accordance with this Agreement and the Customer Order and comply with all applicable laws and regulations with respect to its activities under this Agreement;
3.2. Cooperate with Kontakt.io in the scope necessary for the execution and performance of Parties’ obligations under this Agreement;
3.3. Provide Kontakt.io with all necessary access to such information as may be required by the Kontakt.io in order to render the Services, including but not limited to Customer Data, security access information and configuration services;
3.4. Carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner;
3.5. Use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Kontakt.io of any such unauthorized access or use;
3.6. Obtain and maintain all necessary licenses, consents, and permissions necessary for Kontakt.io, its contractors and agents to perform their obligations under this Agreement including, without limitation, provision of the Services;
3.7. Ensure that its network and systems comply with the relevant specifications provided by Kontakt.io from time to time; and
3.8. Be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Kontakt.io’s data centers, and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
4.1. Customer agrees to purchase the Services on its own behalf and for its own business purposes including providing services to third parties using the Services and Software, but will not sublicense, license, rent, sell, loan, give or otherwise distribute all or any part of the Services or Software to any third party without explicit consent of Kontakt.io.
4.2. Customer agrees not to reverse engineer, disassemble, decompile, modify, or alter the Software or any copy thereof, in whole or in part. Beacon Infrastructure Management and / or Location Engine can be embedded in Customer’s own applications for the sole purpose of using the Services.
4.3. If Customer is merged, consolidated or sold, or if Customer sells or transfers all or substantially all of its assets relating to the use of the Software, Customer shall have the right to transfer its rights and obligations under this Agreement to the surviving or buying entity, provided that Customer shall not be relieved of its obligations hereunder, shall inform Kontakt.io about such events with at least seven (7) days’ notice, and the successor must assume the terms and conditions of this Agreement in a manner acceptable to Kontakt.io, and the scope of use of the Software may not be not substantially altered.
4.4. Customer will reproduce such notices of Kontakt.io’s rights on any copies of user documentation created by Customer. Customer shall not alter, remove or conceal any copyright, trade secret or other proprietary rights notices that may appear on or within the Software or related documentation.
4.5. Any use of the Services in breach of this Agreement may result in Kontakt.io immediately suspending the Services. If Kontakt.io suspends the Services, the Customer shall be immediately notified and given an opportunity to remedy such violation. Kontakt.io shall have the right to terminate this Agreement if the breach has not been remedied within 10 business days.
FEES AND OTHER PAYMENTS
5.1. Customer shall pay the Subscription Fee as indicated on Customer Order. Notwithstanding anything to the contrary, fees for Services shall be non-refundable.
5.2. Unless otherwise stated in the applicable Customer Order, all amounts due shall be paid in U.S. Dollars within seven (7) days after date of invoice. Customer shall pay Subscription Fee by way of bank transfer, using its credit card on Kontakt.io’s Web Panel or in any other manner suggested by Kontakt.io while the Customer Order is being placed. Shall Customer choose credit card as the payment method, Kontakt.io reserves the right to safely store the provided credit card information of Customer for the purpose of charging the Subscription Fee as provided in this Agreement and for the Term.
5.3. Any payment not received by the date due shall bear interest from the date past due at the rate of one percent (1%) per month (prorated for partial periods) or the maximum rate permitted by applicable law, whichever is more.
5.4. In the event payment is ten (10) or more days overdue, Kontakt.io reserves the right to suspend the Services until the overdue amounts are paid in full.
5.5. In the event that payment due to Kontakt.io is collected at law or through an attorney-at-law, or through a collection agency, Customer agrees to pay all costs of collection, including, without limitation, all court costs, and reasonable attorney’s fees.
5.6. Subscription Fee determined in Customer Order are net amounts to be fully paid without any tax deductions (in particular, any local withholding taxes on payments). Customer accepts sole responsibility for the payment of any fees, taxes, charges, or assessments imposed on Customer or Kontakt.io to be paid to any foreign or domestic national, state, or local government bodies, or subdivisions thereof, and any penalties or interest.
5.7. Subscription Fee, whether paid by Customer monthly, quarterly or for a period longer than one (1) calendar month, shall be internally settled by Kontakt.io on a monthly basis at the end of each month.
SERVICE LEVEL AGREEMENT
The Service Level Agreement attached herein as Annex 1 (the “SLA”) constitutes an inherent part of this Agreement.
CUSTOMER DATA RETENTION AND DATA SECURITY
7.1. All data provided by Customer pertaining to its business, personnel, clients or accounts processed by or stored in Kontakt.io’s systems shall be kept confidential by Kontakt.io, shall be used only to carry out this Agreement, may not be disclosed to anyone except employees, agents, processors and contractors of Kontakt.io for the purposes of administration and performance of the Services. All such data shall be and remain the property of Customer and will only be used by Kontakt.io to perform its obligations under this Agreement. Kontakt.io may use such information, during and after the Term, for administrative, monitoring, investigative, and back-up purposes and in an anonymous or redacted format for planning and analysis. Kontakt.io shall provide Customer with additional assurances or evidence of compliance regarding the confidentiality of such matters as Customer considers necessary or appropriate to comply with applicable laws and regulations, audit inquiries, or privacy policies Customer may adopt in the future.
7.2. When and as requested by Customer, Kontakt.io shall return to Customer all of Customer’s information, data, and files in such form as Customer may reasonably request.
7.3. In the event of a security breach, Kontakt.io warrants that it will conduct an internal investigation and following the investigation, and will provide Customer with a written electronic copy of the results of the investigation of the breach.
7.4. Except as expressly permitted in this Agreement, Kontakt.io shall not sell, assign, lease, disseminate or otherwise dispose of the Customer Data or any part thereof to any other person, nor shall Kontakt.io commercially exploit any part of the Customer Data. Kontakt.io shall not possess or assert any property interest in or any lien or other right against or to any Customer Data.
7.5. All Customer Data gathered in the course of providing Beacon Infrastructure Management Service shall be stored by Kontakt.io as long as the Client has an account at the Website but may be deleted after the account is cancelled or has been inactive (no log-ins) for at minimum a year.
7.6. All Customer Data gathered in the course of providing Location Engine Service is stored for two weeks from the time of its creation and may be deleted immediately thereafter without warning.
7.7. It is Customer’s sole responsibility to comply with Regulation (EU) 2016/679 and other data protection laws applicable to the Customer and the data gathered while providing Services.
WARRANTY, EXCLUSIONS, LIMITATIONS
8.1. Kontakt.io undertakes to provide the Services in a good and workmanlike manner. Customer’s exclusive remedy and Kontakt.io’s sole liability for any interruption or deficiency in the Services shall be as provided in Article 9.2.
8.2. Kontakt.io has and will maintain all necessary licenses, consents, permissions necessary for the performance of its obligations under this Agreement.
8.3. Kontakt.io does not warrant that the Services or the operation of the Software will be uninterrupted or error free or that it shall meet Customer’s needs. Unless otherwise established under this Agreement, Customer is solely responsible for the accuracy and integrity of its own data, reports, documentation and security.
LIMITATION OF LIABILITY
9.1. KONTAKT.IO SHALL NOT BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, STRICT LIABILITY AND NEGLIGENCE) FOR LOST PROFITS OR REVENUES, LOSS, OR INTERRUPTION OF USE, LOST OR DAMAGED DATA, REPORTS, DOCUMENTATION OR SECURITY, OR SIMILAR ECONOMIC LOSS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT, OR FOR ANY CLAIM MADE AGAINST CUSTOMER BY ANY OTHER PARTY, EVEN IF KONTAKT.IO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM.
9.2. In any case, Kontakt.io’s cumulative liability under any and all claims made by Customer shall not exceed the total amount of fees theretofore paid by Customer to Kontakt.io relating to the affected Software or Services.
9.3. Notwithstanding anything to the contrary, no action, regardless of form, arising out of or in connection with this Agreement may be brought by Customer more than one (1) year after the first to occur of (i) the termination or expiration of this agreement or (ii) the event giving rise to such cause of action.
9.4. Kontakt.io shall not be liable for paying VAT tax, when Services subscribed by Customer are performed in other country than that of the Customer’s seat.
10.1. The Customer shall defend, indemnify and hold harmless Kontakt.io against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) of infringing on a third party’s rights arising out of or in connection with the Customer’s use of the Services.
10.2. In the situation set forth in Article 10.1, Kontakt.io may terminate this Agreement on two (2) days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.1. Unless otherwise stated in Customer Order, this Agreement is entered into for the period of twelve (12) months under which the Services will be provided beginning from the Effective Date (the “Term”).
11.2. Upon expiration of the Term, the Agreement shall automatically renew for a successive period of the same length unless and until Customer gives Kontakt.io notice of non-renewal at least seven days (7) days prior to the next scheduled renewal date.
11.3. Customer may elect to terminate the Services prior to the expiration of the Term in effect, provided that Customer will give Kontakt.io at least seven (7) days’ advance notice of the termination. For the period of time remaining in the Term in effect following such notice, Customer shall be responsible for payment of an early termination fee, due at the time of termination, equal to the amount of the total monthly Subscription Fee for the Services under the Agreement (the “Termination Fee”). In the event Customer has paid in advance an amount exceeding the price of the Subscription Fee, no Termination Fee will be due, however, Customer shall not be refunded for the fees Customer has already paid.
11.4. Notwithstanding Kontakt.io’s right to suspend the services in accordance with Article 5.4, Kontakt.io, at its option, may suspend or terminate the Services and/or Customer’s access privileges if Customer commits a material breach of this Agreement and fails to cure the breach as quickly as Kontakt.io reasonably requires.
11.5. Upon termination of this Agreement, regardless of the reason, Customer shall immediately cease use of the Software, remove the Software from Customer’s computers, and follow Kontakt.io’s instructions for the return or destruction of all remaining copies of the Software and related documentation. Customer agrees to certify its compliance with the foregoing requirement upon Kontakt.io’s request.
12.1. Kontakt.io reserves the right, title and interest in all technology and data associated with the Software and Services, the design, format and processing of the Services, the database, programs, protocols, displays, and manuals relating to services network (including any modification, addition, or improvement thereto). Kontakt.io’s name and logos are owned by Kontakt.io and protected as Kontakt.io’s intellectual property.
12.2. Customer may not use the “Kontakt.io” mark or logo, or any other mark or brand of Kontakt.io, in publicity, advertising, or external broadcasts or distributions, without the prior written consent of Kontakt.io.
12.3. “Confidential Information means information relating to Parties’ business, including in particular but not limited to designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by the Parties, either directly or indirectly, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date, that either is designated as confidential by the Party at the time of disclosure; or would reasonably be understood, given the nature of the information or the circumstances surrounding its disclosure, to be confidential. Confidential Information also includes the content of the Agreement. Customer agrees to keep Kontakt.io’s Software and features confidential through reasonable security precautions, to use and disclose the same only as necessary for Customer’s internal use of the Services, and not to make any copies thereof except as necessary to use the Services.
12.4. Customer acknowledges that the confidential information protected hereunder is of significant importance to Kontakt.io and that, in the event of the unauthorized use or disclosure of such confidential information, Kontakt.io may not be adequately or reasonably compensated for the loss through damages available in an action at law. Customer therefore agrees that in the event of any such unauthorized use disclosure, Kontakt.io shall be entitled to obtain injunctive and other equitable relief to enforce these requirements and prevent further violation, and Customer agrees to waive any obligation that bond be posted by Kontakt.io in connection with such relief. Resort to such equitable relief shall not be construed, however, to be a waiver of any other rights or remedies that Kontakt.io may have for the same or any other violation of its intellectual property rights.
13.1. Neither Party hereunder shall be liable for any delay or failure to perform its obligations hereunder so long as that delay or failure is the result of an event beyond its reasonable control, including but not limited to, governmental acts, work stoppages, fire, civil disobedience, riots, terrorist acts, rebellions, accidents, explosions, interruptions or imperfections in telephonic service, communications line or equipment failures, satellite malfunctions, electrical disturbances, brown-outs or black-outs, floods, storms, earthquakes, acts of God and similar occurrences, provided that such party uses commercially reasonable efforts to fulfill its obligations under this Agreement.
14.1. The law applicable to this Agreement is the law of the State of New York.
14.2. This Agreement, including any attachments hereto, constitutes the entire agreement between the Parties. Any amendments to the Agreement for their effectiveness require consent of both parties, in writing.
14.3. Any dispute arising out of or in connection with this Agreement, shall be submitted o and resolved in accordance with Article 14 of Terms of Sale and Service, which shall constitute an inherent part hereof.
14.4. This Agreement may not be assigned by either Party without the prior written consent of the other Party.
14.5. The Parties declare that the provisions of this Agreement, including the attachments hereto have been provided to the Customer, the Customer has had the opportunity to review the Agreement prior to its execution and has voluntarily accepted its provisions.
14.6. Customer Order constitutes an integral part of the Agreement.
14.7. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and both of which together shall constitute one and the same instrument.
14.8. Section headings are provided for convenience only, and shall not be used to construe the meaning of any section.
14.9. No waiver or modification of this Agreement or of any covenant, condition or limitation herein shall be valid unless presented in writing and signed by both parties. All covenants contained herein are severable, and in the event of any being held invalid by any competent court, this Agreement shall remain intact except for the omission of the invalid covenant.
SERVICE LEVEL AGREEMENT
1. Target. Service Provider shall exercise reasonable efforts to achieve 99.90% of Uptime (“Target”) in providing the Services. “Uptime” shall mean the ratio of the total monthly number of minutes of availability of the Services to the total monthly number of minutes of unavailability of the Services.
i. In the event that Uptime falls below the Target but is maintained at a minimum of 99% during any calendar month, Service Provider shall credit Customer 15 % of such month’s applicable service fees, which can be applied to the next billing cycle.
ii. In the event that Uptime falls below 99% but is maintained at a minimum of 95% during any calendar month, Service Provider shall credit Customer 30 % of such month’s applicable service fees, which can be applied to the next billing cycle.
1. Termination. In the event that Uptime falls below 95%, Customer is entitled to terminate this agreement and to a total refund of such months’ applicable service fees. Credits issued pursuant to this Agreement apply to outstanding or future invoices only and are forfeit upon termination of this Agreement.
1. Customer Must Request Service Credit. In order to receive any of the Service Credits described above, Customer must notify Kontakt.io within 30 days from the time Customer becomes eligible to receive a Service Credit. Failure to comply with this requirement will forfeit Customer’s right to receive a Service Credit.
1. Force Majeure. Service Provider will not be deemed to have failed to achieve the Target if such failure occurs as a result of an event beyond Service Provider’s reasonable control, including but not limited to governmental acts, work stoppages, fire, civil disobedience, riots, terrorist acts, rebellions, accidents, explosions, interruptions or imperfections in telephonic service, communications line or equipment failures, satellite malfunctions, electrical disturbances, brown-outs or black-outs, floods, storms, earthquakes, acts of God and similar occurrences, provided that Service Provider uses commercially reasonable efforts to fulfill its obligations under this Agreement.
1. AWS Services. Service Provider will not be deemed to have failed to achieve the Target if such failure occurs as a result of interruptions or imperfections in cloud computing service (“AWS Services”).
1. Act of Customer. Service Provider shall also not be deemed to have failed to achieve the Target if such failure occurs due to an act or omission of the Customer.
1. Scheduled Maintenance. Scheduled maintenance shall be excluded from the calculation of Uptime. Scheduled maintenance shall be announced one week prior to release and not exceed 2 hours per month.