Application Service Provider Agreement
This Agreement is made and entered into by and between KOAMTAC, INC., a NEW JERSEY corporation (hereafter “KOAMTAC”) and CUSTOMER, whether an individual user or a corporate user (collectively alternatively referred to throughout as “Subscriber”). This Agreement ("Agreement") is effective as of the date CUSTOMER clicks to accept the Agreement (the "Effective Date"). If you are accepting on behalf of CUSTOMER, you represent and warrant that: (i) you have full legal authority to bind CUSTOMER to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of CUSTOMER, to this Agreement. If you do not have the legal authority to bind CUSTOMER, please do not click to accept. This Agreement governs CUSTOMER 's access to and use of the Service. For an offline variant of this Agreement, you may contact KOAMTAC for more information.
A. KOAMTAC is in the business of providing a software application online, known as “KOAMTACON”, alternatively referred to throughout as “Service” or the "Services";
B. Subscriber is an individual and/or an organization, also termed herein as CUSTOMER, that desires to use a particular KOAMTAC application, titled KOAMTACON, on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, Subscriber ("CUSTOMER") and KOAMTAC, collectively the "Parties", agree as follows:
Section 1. Definitions
Whenever used in this Agreement with initial letters capitalized, the following terms will have the following meanings:
“KOAMTACON” means KOAMTAC proprietary online software application identified thereby, as accessed online via a portal or Administrative Console (hereafter "Admin Console").
“Start Date” means the date on which access to KOAMTACON will commence by Subscriber.
“CUSTOMER(S)” means individual Subscribers and/or those employees/agents of a corporate Subscriber who will have access to KOAMTACON.
“Term” has the meaning given to it in Section 5.1.
"Admin Console" means the Administrative Console that provides access to KOAMTCON and/or provides utilization of KOAMTCON functionality.
"Customer Data" means any and all data owned or possessed by CUSTOMER that is shared with KOAMTAC via use of KOAMTCON.
"Application(s) and Project(s)" means any and all applications and/or projects, generated, owned or possessed by CUSTOMER that are related to the CUSTOMER use of KOAMTCON.
Section 2. Application Software Services
2.1 Scope. Provided that CUSTOMER remains in compliance with this Agreement, any KOMATAC Acceptable Use Provisions (AUP), and applicable law, KOAMTAC will, commencing on the Start Date, permit CUSTOMER to have access to and use KOAMTACON via the Admin Console.
2.2 Compliance with Laws. In its performance of this Agreement, both parties agree to comply with all applicable laws, rules, regulations and orders of governmental authorities having jurisdiction.
2.3 No Additional Representations. CUSTOMER shall not make any representations, warranties or guarantees concerning KOAMTACON and KOAMTAC services and shall refrain from making any false or misleading statements regarding the same.
2.4 Use of Subscriber Name and Logo; Press Releases. Subscriber hereby grants KOAMTAC a non-exclusive right to use CUSTOMER'S name and logo to identify CUSTOMER as a customer of KOAMTACON on or in connection with any KOAMTAC web site, promotional and marketing and securities materials. Other than as provided above, KOAMTAC shall not identify or refer to CUSTOMER in any materials without CUSTOMER'S prior written consent, which shall not be unreasonably withheld.
2.5 Access to System. Access to KOAMTACON by each CUSTOMER shall require the use of a password that will be automatically generated by KOAMTACON and may be changed by the CUSTOMER from time to time. CUSTOMER is fully responsible and liable for all activities that occur under any such password issued to a CUSTOMER. CUSTOMER agrees to notify KOAMTAC immediately of any unauthorized use of any CUSTOMER password or any other breach of security known to CUSTOMER.
2.6 Equipment. CUSTOMER is solely responsible for providing and maintaining at its own expense all equipment, facilities and services necessary to access and use KOAMTACON, including, without limitation, computer hardware and software, modems, telephone service and Internet access.
2.7 Facilities and Services. KOAMTAC may process and store an Application and Customer Data in the United States or any other country in which KOAMTAC or its agents maintain facilities. By using the Services, CUSTOMER consents to this processing and storage of an Application and Customer Data. Under this Agreement, KOAMTAC is merely a data processor.
2.8 Disclosure for EU Customers. For any CUSTOMER electronically and/or physically based in the EU, note that KOAMTAC does not accept CUSTOMERS whose primary place of business, or access of KOAMTACON emanates from any country within the EU ("EU Customer(s)"). By agreeing to the terms herein and by using KOAMTCON services, you hereby warrant that you are not an EU Customer. Should you later become an EU Customer while using KOAMTACON, you hereby agree to notify KOMATAC and discontinue use of KOAMTACON. Failure to abide by the same shall be deemed a Breach as defined under Section 5.2 hereafter.
2.9 Performance. KOAMTAC will use commercially reasonable efforts to ensure that KOAMTACON is fully operational and accessible by CUSTOMER at least 90% of the time measured on a monthly basis, except for scheduled maintenance, and except for any loss or interruption of service due to causes beyond the reasonable control of KOAMTAC or that are not reasonably foreseeable by KOAMTAC, including, but not limited to, interruption or failure of telecommunications or digital transmission links and Internet slowdowns or failures. If KOAMTAC fails to meets its obligations under this Section, CUSTOMER’S sole and exclusive remedy shall be a credit against future Fees equal to a pro rata portion of the Fees for the period of the downtime.
Section 3. Compensation
3.1 Fees. Subscription fees for each month of the Term will be as set forth in Exhibit A hereto under the heading “Fees.”
3.2 Failure of Payment. In addition to other remedies available to KOAMTAC, any payment not received by KOAMTAC when due will bear interest at the lesser of 1.5% per month or the maximum rate allowed by law from the date due until paid. In addition, failure of CUSTOMER to pay any amounts due within thirty (30) days of the invoice date shall be deemed a material breach of this Agreement, justifying suspension of CUSTOMER’S access to KOAMTACON, and will be sufficient cause for termination of this Agreement. Any such suspension does not relieve CUSTOMER from paying any past due amounts plus interest.
Section 4. Customer Service
KOAMTAC will make e-mail and telephone customer support available to the Subscriber for KOAMTACON technical matters upon request according to commercially reasonable terms. Notwithstanding, CUSTOMER is responsible for technical support of Customer Data, and its Application(s) and Project(s).
Section 5. Term and Termination
5.1 Term. The “Term” of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 5 of this Agreement.
5.2 Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, KOAMTAC may terminate any, all, or any portion of the Services or Projects, if CUSTOMER meets any of the conditions in Sections 2.8, 5.2 and 5.3.
5.3 Termination for Inactivity. KOAMTAC reserves the right to terminate the Services for inactivity, if, for a period exceeding 180 days, CUSTOMER: (a) has failed to access the Admin Console; (b) a Project has no active virtual machine or storage resources or an Application has not served any requests; and (c) no electronic bills are being generated.
5.4 Termination for Convenience. CUSTOMER may stop using the Services at any time. CUSTOMER may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. KOAMTAC may terminate this Agreement for its convenience at any time without liability to CUSTOMER. Subject to Section 7, KOAMTAC may discontinue any Services or any portion or feature for any reason at any time without liability to CUSTOMER.
5.5 Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) all Fees (including Taxes) owed by CUSTOMER to KOAMTAC are immediately due upon receipt of the final bill; (iii) CUSTOMER will delete the Software and any Application; and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
5.6 Survival. The provisions of this Agreement that may reasonably be interpreted or construed as surviving termination of this Agreement will so survive.
Section 6. Proprietary Rights
6.1 KOAMTAC Rights. As between the parties, KOAMTAC will have and retain all title and ownership of, and intellectual property and other rights in and to, KOAMTACON and all materials utilized or developed by KOAMTAC in connection with this Agreement. No intellectual property right (including without limitation all copyrights, database structure and organization, specific sets of information extracted therefrom, non-public data, and specifics about the means and standards of KOAMTACON) shall vest in or be transferred to Subscriber. Subscriber acknowledges that KOAMTAC treats all KOAMTACON as KOAMTAC confidential information. Subscriber agrees to conform to this treatment and to protect and preserve KOAMTACON from unauthorized use or disclosure. Subscriber acknowledges that unauthorized disclosure or use of KOAMTACON could cause irreparable harm to KOAMTAC for which monetary damages may be difficult to ascertain. Subscriber agrees that KOAMTAC shall have the right, in addition to its other rights and remedies, to seek and obtain injunctive relief for or to prevent such unauthorized disclosure or uses, and/or to limit any improper benefits derived therefrom, without the necessity of posting a bond or other security.
6.2 Reservation. KOAMTAC reserves any rights not expressly granted to CUSTOMER in this Agreement. Any use of KOAMTACON not expressly authorized by this Agreement is strictly prohibited and will constitute a breach of this Agreement and infringement or misappropriation of KOAMTAC (and its suppliers’) intellectual property rights.
6.3 Subscriber Rights. As between the parties, CUSTOMER will have and retain all title and ownership of, and intellectual property and other rights in and to, CUSTOMER'S own data. CUSTOMER hereby grants to KOAMTAC a non-exclusive, non-transferable, worldwide, and royalty-free license to use CUSTOMER’S data for the purpose of performing its obligations under this Agreement.
Section 7. Indemnification.
7.1 By CUSTOMER. Unless prohibited by applicable law, CUSTOMER will defend and indemnify KOAMTAC and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Instance, Customer Data or Customer Brand Features; or (ii) CUSTOMER’S, or its End Users’, use of the Services in violation of the AUP.
7.2 By KOAMTAC. KOAMTAC will defend and indemnify CUSTOMER and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) KOAMTAC technology used to provide the Services (excluding any open source software) or (b) any KOAMTAC Brand Feature infringes or misappropriates the third party’s patent, copyright, trade secret, or trademark.
7.3 Exclusions. This Section 7 will not apply to the extent the underlying Allegation arises from:
a. the indemnified party’s breach of this Agreement;
b. modifications to the indemnifying party’s technology by anyone other than the indemnifying party;
c. combination of the indemnifying party’s technology with materials not provided by the indemnifying party; or
d. use of non-current or unsupported versions of the Services;
7.4 Conditions. Sections 7.1 and 7.2 will apply only to the extent:
a. The indemnified party has promptly notified the indemnifying party in writing of any allegation(s) that preceded the any formal legal proceeding filed by an unaffiliated third party before a court or government ("Third-Party Legal Proceeding") and cooperates reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 7.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 7.1 or 7.2 (as applicable) will be reduced in proportion to the prejudice.
b. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
a. If KOAMTAC reasonably believes the Services might infringe a third party’s intellectual property rights, then KOAMTAC may, at its sole option and expense: (a) procure the right for CUSTOMER to continue using the Services; (b) modify the Services to make them non-infringing without materially reducing their functionality; or (c) replace the Services with a non-infringing, functionally equivalent alternative.
b. If KOAMTAC does not believe the remedies in Section 7.5(a) are commercially reasonable, then KOAMTAC may suspend or terminate CUSTOMER’S use of the impacted Services.
7.6 Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 7 states the parties’ only rights and obligations under this Agreement for intellectual property rights-related allegations and Third-Party Legal Proceedings.
Section 8. Warranties; Disclaimer; Damage Limitation.
8.1 CUSTOMER. CUSTOMER represents and warrants that: (a) the execution and performance of this Agreement does not and will not violate any agreement to which it is a party or to which it is bound, (b) it is the owner of all rights in, or has obtained permission necessary to use, Customer Data, and no part of the Customer Data infringes upon the intellectual property rights of any third party, or is defamatory to any third party or violates any third party’s rights of privacy or publicity, and (c) the person executing this Agreement on CUSTOMER’S behalf has all necessary authority to bind CUSTOMER or Subscriber to this Agreement.
8.2 Disclaimers. KOAMTAC PROVIDES ACCESS TO THE KOAMTACON APPLICATION “AS IS” AND DISCLAIMS ALL WARRANTIES WITH RESPECT TO IT OR ANY OTHER ITEMS, FUNCTIONS, MATERIALS OR SERVICES PROVIDED OR MADE AVAILABLE TO SUBSCRIBER, WHETHER EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT).
KOAMTAC AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CUSTOMER DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION, PROJECT, AND CUSTOMER DATA. NEITHER KOAMTAC NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SOFTWARE OR THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. NEITHER THE SOFTWARE NOR THE SERVICES ARE DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
8.3 Damage Limitation. IN NO EVENT SHALL KOAMTAC BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, DATA OR BUSINESS), WHETHER OR NOT KOAMTAC IS OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE AMOUNT OF DAMAGES RECOVERABLE FROM KOAMTAC SHALL NOT, IN THE AGGREGATE, EXCEED THE TOTAL AMOUNTS PAID TO KOAMTAC DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY UNDER THIS AGREEMENT.
Section 9. Miscellaneous
9.1 Assignment. Neither party may assign this Agreement or any right or obligation hereunder, by operation of law or otherwise, without the other party’s prior written consent. Subject to the foregoing restriction, this Agreement will bind and benefit the parties and their respective successors and assigns.
9.2 Governing Law. Where CUSTOMER is a U.S. city, county or state government entity, then the Agreement will be silent regarding governing law and venue. Where CUSTOMER is a U.S. Federal government entity, then the following applies: all claims arising out of or relating to this Agreement or the Services will be governed by the laws of the United States of America, excluding its conflict of laws rules. Solely to the extent permitted by Federal law: (i) the laws of the State of New Jersey (excluding the conflict of laws rules of New Jersey) will apply in the absence of applicable Federal law; and (ii) for all claims arising out of or relating to this Agreement or the Services, the Parties consent to personal jurisdiction in, and the exclusive venue of, the courts in Middlesex County, New Jersey. Where CUSTOMER is not any type of domestic governmental entity as set forth immediately above, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY NEW JERSEY LAW, EXCLUDING THE CONFLICT OF LAWS RULES OF NEW JERSEY, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF MIDDLESEX COUNTY, NEW JERSEY, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS;AND CUSTOMER AGREES NOT TO COMMENCE OR PROSECUTE ANY SUCH ACTION, CLAIM OR PROCEEDING OTHER THAN IN THE AFOREMENTIONED COURTS.
9.3 Relationship Between the Parties. KOAMTAC shall at all times be deemed to be an independent contractor and neither KOAMTAC nor any of its employees, subcontractors, or agents shall have the right or power to bind CUSTOMER. This Agreement shall not create or be deemed to create a joint venture, partnership, agency, or employer-employee relationship or other similar associations between KOAMTAC and CUSTOMER or any of either party’s employees, subcontractors or agents.
9.4 Modifications. This Agreement may only be modified by a written agreement, duly signed by persons authorized to sign such agreements on behalf of the Parties thereto. The term “this Agreement” as used herein includes any applicable written supplement or future written amendment made in accordance herewith.
9.5 Severability. If any provision or provisions of this Agreement are held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
9.6 Notices. Any notice or demand that either party may or must give to the other hereunder shall be in writing and delivered personally or sent by registered mail, addressed, if to KOAMTAC, as follows:
116 Village Boulevard, Suite 305
Princeton, NJ 08540 USA
Electronic notifications must be sent via email to the KOAMTAC Legal Department at email@example.com. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
9.7 Limitation of Actions. No action, regardless of form, arising out of this Agreement may be brought by either party (1) in the case of an action for nonpayment, more than two years from the date the last payment was due; or (2) in the case of any other action, more than two years after the cause of action arose.
9.8 Waiver. No failure of either party to exercise any power or right granted under this Agreement, or to insist upon strict compliance by the other party of any obligation under this Agreement, and no custom or practice of either party with regard to the terms of performance of this Agreement, shall constitute a waiver of the rights of such party to demand full and exact compliance with the terms of this Agreement unless such waiver is in writing and signed by the party claimed to have waived such right.
9.9 Entire Agreement. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements and understanding, either oral or written, between the parties with respect to the subject matter hereof.
The Parties have caused this Agreement to be executed by their authorized representatives as of the Effective Date.