Kainos Smart Subscription Service Terms and Conditions

These Kainos Smart Subscription Services Terms and Conditions are entered into and effective as oftheEffectiveDate by and between Kainos Software Limited, aLimited company, with registered company number NI019370,whose registered address is Kainos House, 4-6 Upper Crescent, Belfast, County Antrim BT7 1NT, United Kingdom("Kainos") and the Customer detailed in the Order Form (“Customer”) each a ‘Party’ and together the ‘Parties’.

Kainos provides the Subscription Serviceand Customer wishes to subscribe to that Subscription Service, subject to the rights and obligations of each Party asset out in the Agreement. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1DEFINITIONS AND INTERPRETATION

1.1In this Agreement, unless expressly stated to the contrary, the following expressions shall have the following meanings:

Affiliate
Agreement
Authorised Person(s) / means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
means these Kainos Smart Subscription Service Terms and Conditions including the Smart SLA, any annexes or appendices to them and any executed Order Form.
means Customer’s Staff, Affiliates (and Staff of Affiliates) and third parties authorised to access the Subscription Service or access and receive Customer Data by the Customer in writing, by use of a valid Customer login to the Subscription Service or by any other system integration or data exchange process.
Hosting Platform / means the Amazon Web Services cloud hosting platform set out in the Order Form.
Customer Data
Effective Date / means all electronic data or information submitted by Customer or Authorised Persons to the Subscription Service.
means the date from which the Subscription Serviceswill be made available to the Customer as set out in the Order Form.
Malicious Code / means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Order Form / means the document by which the Customer contracts the Subscription Services, in the event of any conflict between theseKainos Smart Subscription Services Terms and Conditions and the terms of any such Order Form, the provisions of the relevant Order Form shall prevail.
Smart SLA
Staff
Subscription Service(s)
Subscription Term / means the service level availability applicable to the Subscription Services, which may be updated by Kainos from time to time.
means employees, consultants, workers, independent contractors, contingent workers, seasonal staff and retirees of the Customer and its Affiliates whose business records may be tested by the Subscription Service as detailed in the Order Form.
means the Kainos software as a service application known as ‘Smart’, a cloud-based, automated testing tool for Workday implementations providing functionality to automate the testing of Workday business processes and integrations as described in the Guides and as subscribed to under an Order Form.
means the period starting on the Effective Date and ending on the End Date, as specified in the relevant Order Form.
Guides / means the Kainos electronic and hard copy user guides for the Subscription Service which may be updated by Kainos from time to time.

2ServiceS

2.1Provision of Subscription Service.Kainosshall, for the Subscription Term, make theSubscription Services available to the Customer,and the Authorised Persons in accordance with the Guides and the Smart SLA, solely for Customer’s own internal business purposessubject to the terms andconditions of the Agreement. All rights not expressly grantedto Customer are reserved by Kainos and its licensors.Customer may not publish the results of any tests it conducts to monitorthe availability,performance or functionality of the Subscription Services, or use the Subscription Services for any competitive purposes. Customer agrees that its purchase of subscriptions is neithercontingent upon the delivery of any future functionality orfeatures nor dependent upon any oral or written publiccomments made by Kainos with respect to futurefunctionality or features of the Subscription Services. The Subscription Service charges paid by a Customer provide the Customer with a right to use the Subscription Services for the modules set out in the Order Form. Where additional modules are released they shall be available for Customer to subscribe to at the then current rates.

2.2Platform.It is agreed and acknowledged that theSubscription Service is hosted on the Hosting Platform and the AWS region in which the data will be stored will be determined by the Hosting Platform Location, specified in the Order Form. Where the Hosting Platform Location is within the EEA the data will be hosted within the EEA. Where the Hosting Platform Location is the United States of America the data will be hosted in the United States of America. It is acknowledged that the Subscription Services will involve the transfer, storage and processing of data (including Customer Data) at the specified Hosted Platform Location; the Customer specifically consents to this and will procure the same consent from any Authorised Persons using the Subscription Service in respect of data controlled by such Authorised Persons.

2.3Additional Staff.Unless otherwise specified in therelevant Order Form, the Customer is permitted to use the Subscription Services for the number of Staff detailed in the Order Form. If at any time during the Subscription Term, the Staff in respect of which the Subscription Service is used increases from the number of Staffset out in the Order Formthe Customer shall immediately inform Kainos. An additional subscription charge will be payable in respect of the increased number of Staff calculated pro rata to (i) the charge detailed in the Order Form, (ii) the percentage Staff increase, and (iii) the duration of the Subscription Term remaining.The term of theadditional subscriptions shall be coterminous with theexpiration of the Subscription Term in effect at the time that anyadditional Staffare added.

2.4Authorised Persons. Customer may permit the Authorised Personsto use the Subscription Service subject to the terms ofthis Agreement. Customer is responsible for the compliance by the Authorised Personswith the terms of this Agreement.

3Use of the Subscription ServiceS

3.1Kainos Responsibilities. Kainos shall:

(i)in addition to its confidentiality obligations hereunder, not use,modify or disclose to anyone other than Authorised Persons the CustomerData; (ii) to the extent the Customer Data comprises “personaldata” within the meaning of applicable data protection lawsand regulations, and in respect of which it is herebyacknowledged that Kainos is acting as data processoronly: (a) process the Customer Data in accordance with this Agreement, Customer’s instructions and applicable dataprotection laws and regulations; (b) take appropriate technical,organisational and security measures against unauthorisedaccess to or unauthorised alteration, disclosure, destruction orloss of Customer Data; and (c) take reasonable steps to ensurethat Kainos employees involved in providing the Subscription Service and the Smart SLA areaware of and are suitably trained in such technical,organisational and security measures; and (iii) maintain availability of the Subscription Servicein accordance with the SmartSLA.

3.2Customer Responsibilities.Customer:

(i) hassole responsibility for the accuracy, quality, integrity, legality,reliability, appropriateness, and intellectual propertyownership or right to use of all Customer Data and shallensure that all instructions given by it to Kainos in respectof the Customer Data will be in compliance with applicabledata protection legislation;

(ii) shall use reasonableendeavours to prevent unauthorised access to, or use of, theSubscription Service, and notify Kainos promptly of any suchunauthorised access or use; and

(iii) shall comply with allapplicable local, state, federal and foreign laws in respect of theSubscription Service, including without limitation all applicable dataprotection laws and regulations.

(iv) mayenable access to the Subscription Service by Authorised Personssolely for itsinternal business purposes as contemplated bythis Agreement and shall not:

(a) license, sublicense, sell,resell, rent, lease, transfer, assign, distribute, time share orotherwise commercially exploit or make the Subscription Service availableto any third party, other than to Authorised Persons or as otherwisecontemplated by this Agreement;

(b) use the Subscription Service tosend, process or store infringing, obscene, threatening,libelous, or otherwise unlawful or tortious material, includingmaterial that is harmful to children or violates third partyprivacy rights;

(c) use the Subscription Service tosend or store Malicious Code;

(d) interferewith or disrupt the integrity or performance of the Subscription Service orthe data contained therein;

(e) attempt to gain access to the Subscription Service or its related systems or networks in a manner not detailed in the Guides;

(f)modify or make derivative works based upon the Subscription Service or the content;

(g) create Internet "links" to the Subscription Service or"frame" or "mirror" any content on any other server orwireless or Internet-based device; or

(h) reverse engineer oraccess the Subscription Service in order to (i) build a competitive productor service, (ii) build a product using similar ideas, features,functions or graphics of the Subscription Service, or (iii) copy any ideas,features, functions or graphics of the Subscription Service.

(v) is responsible for all Authorised Persons use of the Subscription Service andtheircompliance with this Agreement as if such Authorised Persons were the Customer. Customer is liable for the acts and omissions of all Customer Authorised Persons relating to this Agreement.

Notwithstanding any other remedies available to Kainos, if Kainos reasonably believes the Customer is failing in the Customer responsibilities detailed at (iv)(a) to (iv)(h) inclusive, Kainos will inform the Customer. If the Customer has not remedied the situation within 2 working days following notification Kainos may suspend access to the Subscription Service pending resolution. Kainos may suspend the Subscription Service without notice in connection with illegal content or use, where such content may disrupt or threaten the Subscription Service or as required to comply with law or other judicial or government order.

3.3Subscription Service Usage.

(i)The maximum number of test cases than may be run in any 12 month period is limited to the greater of 10,000 or twice x the number of Staff (the “Test Case Limit”).

(ii)If the Customer exceeds the Test Case Limitthey will be charged on a pro-rata basis calculated by reference to the charge for Subscription Term year in which the Test Case Limit was exceeded.

(iii)Kainos will notify Customer when the Customerreaches approximately 90% of its Test Case Limit and the Customershall have noresponsibility to payadditionalcharges unless and until Kainos has notified the Customer in accordance with this section 3.3.

3.4Deletion of Data.

(i)All Customer Data loaded into the Subscription Service will be deleted by Kainos within thirty (30) days following the end of the Subscription Term.

(ii)Where the Subscription Term exceeds twelve (12) months, Customer Data will be retained within the Subscription Service for twelve (12) months from entry into the Subscription Service.

(iii)Customer Data that is twelve (12) months or more old will (unless legally prohibited) be deleted from the Subscription Service on a monthly basis by Kainos. This is an automatic process and Kainos will not contact the Customer prior to the monthly data deletion cycle.

(iv)The Customer may request that Kainos delete Customer Data prior to expiry of the twelve(12) month holding period and Kainos will use reasonable endeavours to comply with that request in the next monthly data deletion cycle and shall notify the Customer once such Customer Data has been deleted.

3.5Publicity.

(i)Customer agrees that withinthree (3) months ofsigning theAgreementKainos may issue a press releaseannouncing Customer as a user of Kainos technology.

(ii)Subject to section 3.5 (i), neither party may issue press releases relating to thisAgreement without the other party’s prior written consent which shall not be unreasonably withheld or delayed.

(iii)Either party may include the name and logo of the other partyin lists of customers or vendors in accordance with the otherparty’s standard guidelines. Kainoswillmay not use the Customer as a reference site or for quotes etc without prior agreed permission on a case by case basis

4CHARGES& Payment

4.1Charges.Save where the Customer terminates for cause under and in accordance with section 10.2, the payment obligations cannot be cancelledand all amounts paid are non-refundable. Customeris responsible for paying for all charges detailed in the Order Form for theentire Subscription Term(subject to any agreed early termination) set out in the Order Form. Except as otherwise specified hereinor in an Order Form, all charges are quoted and payable in the currency specified in the Order Form. In respect of the Subscription Service,charges are based on the Subscription Services purchased and not actual usage. Usage at a level below that set out in the Order Form will not affect the charges due.

4.2All pricing terms are confidential, and the Customer agreesnot to disclose them to any third party except that the Customer is permitted to disclose such pricing terms to Authorised Persons in accordance with the receipt of the Subscription Services or in connection with the entering into of this Agreement.

4.3Invoicing & Payment.Chargesfor the Subscription Service will beinvoiced in advance or otherwise in accordance with therelevant Order Form. If a Customer purchase order is required for invoicing and/or payment, the Customer will ensure the purchase order is raised and supplied to Kainos within two weeks following the Effective Date. In the event the Customer fails to do so, Kainos may suspend provision of the Services without liability until receipt of such purchase order. Chargesmust be paid withinthirty (30) days following the invoice date.Customer is responsible for maintaining complete andaccurate billing and contact information on the Subscription Service. Kainos will invoice the Customer for anyadditional charges arising under section2.3 of this Agreement within thirty (30) days following receipt of notification from the Customer of the increase in Staff numbers.

4.4Overdue Payments. Any payment not receivedfrom Customer by the due date may accrue (except withrespect to charges then under reasonable and good faithdispute), at Kainos’ discretion and without further notice,interest at the rate of 3% above the Bank of England base rate from time to time, or the maximum rate permitted by law, whichever islower, from the date such payment was due until the date paid.

4.5Suspension of Services. If Customer’s account is 30days or more overdue (except with respect to charges thenunder reasonable and good faith dispute), Kainos shall notify Customer of such overdue payment. In the event such payment remains overdue following 30 days of such notice, in addition to any ofits other rights or remedies, Kainos reserves the right tosuspend the Subscription Services, without liability toKainos, until such amounts are paid in full.

4.6Taxes. Unless otherwise stated, Kainos’ fees will include value added tax as applicable but will not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes(if any)associated with its purchases hereunder. If Kainos has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Kainos with a valid tax exemption certificate authorised by the appropriate taxing authority.

4.7Charges Increase. The chargesdetailed in the Order Form and the SLA are fixed at the level set out in the Order Form and SLA for the Subscription Term, save for annual increases on the anniversary of the Effective Date in line with any increase over the preceding twelve (12) month period in: (i) where the Customer is an entity incorporated in the United States of America, the Consumer Price Index as compiled by the Bureau of Labor Statistics, or (ii) where the Customer is an entity incorporated outside of the United States of America,the Retail Price Index (“RPI”) published by the Office for National Statistics of the UK.

5Proprietary Rights

5.1Reservation of Rights.Subject to the limited rightsexpressly granted hereunder, Kainos alone (and itslicensors, where applicable) reserves all rights, title andinterest in and to the Subscription Service, including all related intellectualproperty rights. No rights are granted to Customer hereunderother than as expressly set forth herein. This Agreement is nota sale and does not convey to Customer any rights ofownership in or related to the Subscription Service, Kainos technologyor the intellectual property rights owned by Kainos or its licensors. The Kainos name, the Kainos logo and the product namesassociated with this service are trademarks of Kainos orthird parties and no right or license is granted to use them.