This Software Subscription Agreement (“SSA”) by and between Kaiten Software (Cyprus),
LTD. a corporation registered in Cyprus, having its principal place of business at Cyprus, 3086, Limassol, Agias
Philaxeos 131, office 301. (“Kaiten”), and the customer identified on a signed Order Form
(“Customer”), governs the
provision of any Subscriptions, Services, and other materials or information provided by Kaiten to Customer.
This SSA, Order Form(s), exhibits or statements of work(s) separately executed by the parties, and other documents
expressly referenced herein or referencing this SSA are collectively referred to as the “Agreement.” Unless
specified to the contrary in an Order Form, this Agreement will be effective on the date of Customer’s signature on
the Order Form (the “Effective Date”).
- 1.1 “Kaiten Software” shall mean, collectively or individually, the software created/ designed by Kaiten
in Exhibit A, attached to this Agreement that is provided to the Customer(s) on a subscription basis for the
Purpose, including the Updates (defined below).
- 1.2 “Updates” shall mean enhancements, bug fixes, updates and new versions made to the Kaiten Software by
and provided to the Customer by Kaiten.
- 1.3 ”Upgrades” shall mean replacement of the Kaiten Software with a newer or better version in order to bring
system up to date or improve the characteristics of the Kaiten Software.
2. Intellectual property rights.
- 2.1 Ownership. Kaiten retains all right, title and interest in and-to-and ownership of Kaiten
Software, to all
Updates and all modifications and the intellectual property rights thereto. Kaiten does not transfer either the
title or the intellectual property rights of the Kaiten Software and its subscription services to the
- 2.2 Preservation of Kaiten’s Notices. The Customer agrees not to (and not to allow others to)
remove, alter, cover
over or deface Kaiten’s proprietary notices which appear in or in connection with the service as provided by
to the Customer under this Agreement. Additionally, Kaiten may include Customer’s name and/or logo within its
of customers for general promotional purposes.
- 2.3 Subscription to the Customers. Subject to all limitations and restrictions contained
herein, Kaiten grants to
the Customer a subscription to the service as provided by Kaiten and a non-exclusive, revocable, limited, and
non-transferable right to access and the Kaiten Software, as hosted by Kaiten (“Use”). Customer shall have a
limited right and license to Use the service as provided by Kaiten solely for its internal purposes, to perform
functions described under Exhibit A, attached hereto, for the Purpose. Customer shall not allow any website that
not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web
that provides direct or indirect access to the Kaiten Software. Unless otherwise expressly permitted in this
Agreement under Exhibit A, attached hereto, Customer shall not permit any subsidiaries, affiliated companies, or
third parties to access the Kaiten Software without consent from Kaiten. Customer shall be provided with log-in
credentials to the Kaiten Software by the Kaiten representative and the Customer shall use the same to create an
account (“Customer Account”). The Customer Account shall be the interface between the Kaiten Software and the
Customer and will enable the Customer to view pricing details of the subscription and other features pertaining
the Kaiten Software.
- 2.4 Free Trial. Kaiten may offer at its discretion, a free trial of the Kaiten Software for a
period. During such trial period, Customer shall be bound by the terms of this Agreement and any applicable law,
regulation and generally accepted practices or guidelines in the relevant jurisdictions. Any data which Customer
enters into the Kaiten Software, and any customizations made to the Kaiten Software by or for Customer, during
Customer’s free trial will be permanently lost at the expiry of the specified time period unless the Customer
Upgrades his/her/its subscription to one of the paid subscription plans. Kaiten does not provide any warranty
the trial period.
- 2.5 Customization to the Kaiten Software. Kaiten has the sole right to modify any feature or
customize them at its
discretion and there shall be no obligation to honor customization requests of the Customer. The subscription
hence charged is exclusive of any customization costs.
- 2.6 Functionality Changes. Kaiten at its discretion reserves the right to add new
functionality, remove existing
functionality, and modify existing functionality to the Kaiten Software as and when it deems fit, and make any
changes available in newer versions of the Kaiten Software or native mobile application or all of these at its
discretion. The Customer will be duly notified upon release of such newer versions and Kaiten reserves the right
automatically Upgrade all its users, including the Customer, to the latest version of the Kaiten Software as and
when Kaiten deems fit. The new features may not be given to older plans and may be reserved only for newer plans
provided at additional charge. Customer hereby agrees and acknowledges that Kaiten reserves the right to extend
withdraw one of the functionalities on Kaiten Software provided to Customer at Kaiten’s sole discretion, based
the number of appointments being honored by Customer. The extension or withdrawal of such facility shall be
intimated to the Customer by Kaiten. Kaiten, at its sole discretion, reserves the right to extend the “Share”
functionality to the Customer at the Customer’s request.
- 2.7 Customer and other Information. Any communication sent by or through Kaiten or the Kaiten
Software to the
clients or customers of the Customer(s) is based solely on information uploaded by Customer on the Kaiten
The accuracy and completeness of such information (including but not limited to contact details of the client or
customer) is the sole responsibility of the Customer. Kaiten will not be responsible for the incompleteness or
inaccuracy of such information, including without limitation, if as a result of such inaccuracy, a communication
sent to an unintended recipient. Kaiten Software might also contain other features which provides information
including any content/ articles related to any business references and recommendations and the Customer agrees
acknowledges that Kaiten will not be responsible for the inaccuracy of such information.
- 2.8 Additional Restrictions. In no event shall Customer disassemble, decompile, or reverse engineer the Kaiten
Software or permit others to do so. Disassembling, decompiling, and reverse engineering include, without
(i) converting the Kaiten Software from a machine-readable form into a human-readable form; (ii) disassembling
decompiling the Kaiten Software by using any means or methods to translate machine-dependent or
object code into the original human-readable source code or any approximation thereof; (iii) examining the
machine-readable object code that controls Kaiten Software’s operation and creating the original source code or
approximation thereof by, for example, studying Kaiten Software’s behavior in response to a variety of inputs;
performing any other activity related to the Kaiten Software that could be construed to be reverse engineering,
disassembling, or decompiling.
- 2.9 Authorized Users. Unless otherwise specifically provided in the Agreement, “Authorized
Users” will only consist
of: (i) employees of Customer, and (ii) subject to Section 5 (“Confidentiality”), third party contractors of
Customer who do not compete with Kaiten (“Permitted Contractors”). Permitted Contractors may Use the Kaiten
only at Customer’s place of business or in the presence of Customer personnel. Customer is fully liable for the
and omissions of Permitted Contractors under this Agreement.
- 2.10 Feedback. Customer acknowledges that the Kaiten Software shall include the ability for
users of the Customer’s
service (“End-Users”) to provide Feedback on such service.
Customer acknowledges that Kaiten shall be entitled to, in its sole discretion, to publish or not publish such
Feedback or to retain or not retain such Feedback and to moderate such Feedback, as required. “Feedback” for the
purposes of this Agreement shall mean feedback, ratings and review provided by End-Users to the Customer’s
made available by Kaiten on the Kaiten Software. Any communication sent by the Customer to its clients or
(whether or not End-Users) based on information collected by the Customers of its clients or customers will be
responsibility of the Customer. The Customer must ensure accuracy of such communication sent, and must ensure
it is sent to the intended recipient.
3. Payments and Refunds.
Refunds. In the event the Customer chooses to cancel the subscription, Kaiten shall not provide refunds. But certain
refund requests for Subscriptions may be considered by Kaiten on a case-by-case basis and granted in sole discretion
- 4.1 Confidential Information. The parties to this Agreement undertake to retain in confidence
disclosed to the other party in relation to this Agreement that the disclosing party has designated as being
confidential in writing or if disclosed orally, or if, designated as confidential at the time of such disclosure
reduced to writing conspicuously marked as confidential and sent to such other party within thirty (30) business
days thereof (“Confidential Information”). The terms and conditions of this Agreement including its Exhibits
be considered Confidential Information.
- 4.2 Exclusions. “Confidential Information” will not include information that: (a) is or
becomes generally known or
available by publication, commercial use or otherwise through no fault of the receiving party; (b) the receiving
party can demonstrate to have had rightfully in its possession and without restriction, prior to disclosure
hereunder; (c) is independently developed by the receiving party without use of the disclosing part’s
Information, as can be shown by tile written records of the receiving party; (d) is lawfully obtained from a
party who has the right to make such disclosure; or (e) is released for publication by the disclosing party in
writing. A receiving party also may disclose disclosing party’s Confidential Information to the extent required
court or other governmental authority, provided that the receiving party promptly notifies the disclosing party
the disclosure requirement and cooperates with the disclosing party (at the latter’s expense and at its request)
resist or limit the disclosure.
- 4.3 Protection of Confidential Information. Each party agrees to protect the other party’s
to the same extent that it protects its own confidential information of a similar nature and shall take all
reasonable precautions to prevent any unauthorized disclosure of Confidential Information to third parties. A
may disclose other party’s Confidential Information to its directors, officers, employees and third party
contractor(s) (“Representatives”) on a need to know basis and to the extent necessary for the purpose of this
Agreement. If a party provides Confidential Information of the other party to its Representatives, then it will
ensure that such Representatives have entered into a written confidentiality agreement with the part providing
information to the Representatives protecting such Confidential Information from unauthorized disclosure or
use. Obligations of confidentiality under this Agreement shall survive the termination or expiration of the
Agreement for a period of three (3) years; save for Confidential Information constituting trade secrets, in
event the obligations shall subsist indefinitely.
5. Representations and Warranties.
- 5.1 By the Customer. The Customer represents and warrants that the (a) Customer is 18 years of
age or older, and
that if you are less than 18 years old, your parent or legal guardian has agreed to stand behind any agreement
enter into as a participant on Kaiten.
And Customer has the right, authority and capacity under the applicable law to use the Kaiten Software and enter
into this Agreement; (b) Customer will not transfer (including by way of sublicense, lease, assignment or other
transfer, including by operation of law) their login and Account details or right to use the Kaiten Software to
third party; (c) information given to Kaiten or uploaded on the Kaiten Software by the Customer will always be
accurate, correct, complete and up to date, to the best of the Customer’s knowledge and that the Customer is the
owner of the data disclosed and Customer has the necessary rights (under applicable laws) from the end-user to
upload such information on the Kaiten Software, including but not limited to end-user business records (“User
Content”), and that such right from the end-user shall include an explicit right for Kaiten to reflect and map
User Content with an account of such user as may be created by such user through the Kaiten website and for
to further store and use the User Content for the purposes of Kaiten’s business and for providing such other
services in Cyprus and outside Cyprus, as may be applicable ; (d) Customer will not use the Kaiten Software for
unauthorized and unlawful purpose; (e) Customer will not engage in any activity that interferes with or disrupts
Kaiten Software or the servers and networks which are connected to the Kaiten Software; (f) Customer will not
reproduce, duplicate, copy, transfer, license, rent, sell, trade or resell the Kaiten Software for any purpose
whatsoever; (g) comply with all laws, regulations, and ordinances applicable to the Customer and its business
relating to the use of the Kaiten Software under this Agreement; and (h) Customer will be subscribing to the
Software only for the Purpose.
- 5.2 By Kaiten. The service provided by Kaiten is provided on an “as is”, “as available” basis
and Kaiten makes no
express or implied representations or warranties about its subscription services and/ or the Kaiten Software or
merchantability or fitness for a particular purpose or use or non-infringement. Kaiten does not authorize anyone
make a warranty on Kaiten’s behalf and You may not rely on any statement of warranty as a warranty by Kaiten.
- 6.1 Kaiten Indemnity. Kaiten shall indemnify, hold harmless and, defend the Customer from and
against any and all
final court awarded damages that are attributable to claim by a third party indicating that the Kaiten Software
infringes such third party intellectual property rights; provided that: (a) the Customer gives Kaiten prompt
in writing of any such suit and permits Kaiten, through counsel of its choice, to answer the charge of
and defend such claim or suit; (b) the Customer provides information, assistance and authority to enable Kaiten
defend such suit; and (c) Kaiten shall not be responsible for any settlement made by the Customer without
prior written permission provided, however that such permission shall not be unreasonably withheld.
- 6.2 Duty to correct. Should the Kaiten Software become the subject of a claim of infringement
of a third party
intellectual property right, Kaiten shall, at Kaiten’s expense: (a) procure for the Customer the right to use
Kaiten Software in question; or (b) replace or modify the Kaiten Software to make it non-infringing, provided
substantially the same function is performed by the replacement or modified Kaiten Software; or (c) if the right
use cannot be procured or the Kaiten Software cannot be replaced or modified, Kaiten shall accept the return of
Kaiten Software and reimburse the Customer for any payments made in advance for the un-used term of the
The Customer’s sole and exclusive remedy is as stated herein and to cease use of the Kaiten Software.
- 6.3 Exclusions. Kaiten shall have no liability set forth in Section 7.1 above: (a) for any
claim or suit, where
such claim or suit would have been avoided but for the effect on the Kaiten Software caused by other software or
hardware included in the service by the Customer; (b) for infringement of any intellectual property or
rights arising in whole or in part from changes made to any Kaiten Software by any party other than Kaiten; and
where the allegedly infringing activity continues after the Customer has been notified thereof or has been
of modifications that would have avoided the alleged infringement by Kaiten.
- 6.4 Customer Indemnity. The Customer will defend, indemnify, and hold harmless Kaiten, its
corporate affiliates, or
any of its or their respective directors, officers, owners, employees, agents, successors, and permitted assigns
from and against any and all third-party claims, suits, proceedings, costs, and expenses (including, without
limitation, attorneys’ fees) arising from or related to the Customer’s (a) breach of the confidentiality
obligations, breach of intellectual property provisions and breach of representation and warranties provisions
herein; (b) violation of any applicable law; and (c) willful misconduct and gross negligence.
7. Limitation of Liability.
IN NO EVENT SHALL KAITEN BE LIABLE TO THE CUSTOMER FOR ANY LOST OR CORRUPTED DATA,
DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION,
NEGLIGENCE AND (B) IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF KAITEN, FOR ALL CLAIMS ARISING OUT OF OR UNDER
THIS AGREEMENT, EXCEED THE AMOUNT THAT THE CUSTOMER HAS PAID OR WILL PAY TO KAITEN FOR THE SERVICE UNDER THIS
AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE MOST RECENT CLAIM.
8. Term and Termination.
- 8.1 Term. This Agreement will remain in full force and effect for a period of one (1) year
unless terminated by the
parties in accordance with the provisions mentioned hereunder. This Agreement shall automatically renew for one
year periods unless a party expresses his/her/its intention to terminate the agreement by providing sixty (60)
notice to the other party prior to the then expiry of the Agreement term.
- 8.2 Termination for Convenience. Kaiten shall have a right to terminate this Agreement for
convenience by providing
thirty (30) days’ prior written notice to the Customer. The Customer can request for termination of his/her/its
subscription of the Kaiten Software any time by providing seven (7) days’ prior notice. During these seven (7)
period, Kaiten will investigate and ascertain the fulfilment of any ongoing subscription services or pending
related to subscription fees or any other fees by the Customer.
- 8.3 Termination for Cause. Each party reserves the
right to terminate this Agreement if the other party breaches a material obligation under this Agreement and
breach remains uncured for a period of thirty (30) days from the date of notification of the non-breaching
- 8.4 Effect of termination. On termination of this Agreement due to the reasons mentioned in
Section 8.2 and 8.3
herein above, Kaiten reserves the right to immediately terminate the subscription of the Kaiten Software to the
Customer. Nothing contained in this Agreement shall restrict Kaiten’s use of the data or right to publish
information made available by the Customer in the public domain through the subscription services or any other
platform managed by Kaiten after the termination or expiry of this Agreement. After a 30 (thirty) days period
the date of termination of the Agreement, Kaiten shall have no obligation to maintain or provide any Customer
and shall thereafter, unless legally prohibited, delete all Customer’s data in its systems or otherwise in its
possession or under its control. In cases where the Customer terminates the subscription voluntarily, it will be
sole responsibility of the Customer to make a copy of their data before terminating the subscription. End-Users
will not be available after termination of subscription in such cases.
- 9.1 Assignment. The Customer may not assign this Agreement or any rights herein without the
prior, written consent
- 9.2 Waiver. Failure or delay on the part of a party to exercise any right, power, privilege or
shall not constitute a waiver thereof. A waiver of default shall not operate as a waiver of any other default or
the same type of default on future occasions.
- 9.3 Notices. All notices and other communications pertaining to this Agreement shall be in
writing and shall be
deemed to have been given by a party hereto as set forth below and shall either be (a) personally delivered; (b)
sent via postage prepaid certified mail, return receipt requested; (c) sent by nationally-recognized private
courier or (d) sent via email. Notices shall be deemed to have been given on the date of receipt if personally
delivered or via fax, or two (2) days after deposit via certified mail or express courier. A party may change
address for purposes hereof by written notice to the other in accordance with the provision of this section. The
addresses for the parties are as follows: Kaiten: 4206 Carson Street Cyprus, 3086, Limassol, Agias Philaxeos
office 301. Customer: As mentioned in the invoice.
- 9.4 Severability. If any portion of this Agreement is held invalid, the parties agree that
such invalidity shall
not affect the validity of the remaining portions of this Agreement, and the parties further agree to substitute
the invalid provision a valid provision that most closely approximates the economic effect and intent of the
- 9.5 Independent Parties. The parties acknowledge that neither party is an agent or employee of
the other party, and
that neither party has any authority to bind the other party to any agreement or obligation.
- 9.6 Governing Law. Subject to the provision on arbitration below, this Agreement and any
between Kaiten and the Customer will be governed by the laws of Cyprus. Any dispute, claim or controversy
out of or relating to this Agreement, including the determination of the scope or applicability of this
arbitrate shall be determined by arbitration in Cyprus, before a sole arbitrator appointed by Kaiten. The seat
such arbitration shall be Cyprus. Subject to the above mentioned Section, the courts in Cyprus shall have
jurisdiction over any disputes arising out of or in relation to this Agreement.
- 9.7 Headings. Paragraph headings have been included in this Agreement merely for convenience
of reference. They
shall not be considered part of, or be used in interpreting, this Agreement.
- 9.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which
shall be deemed an
original and all of which taken together shall constitute one and the same Agreement.
- 9.9 Survival. The provisions of Sections 2, 3, 4, 5, 6, 7, 8 and 9 shall survive expiration or
termination of this
Agreement for any reason.
- 9.10 Entire Agreement. This Agreement and the Exhibits attached hereto constitute the entire
agreement between the
parties with respect to the subject matter hereof and supersede all proposals, oral or written, all previous
negotiations and all previous communications between the parties with respect thereto.
- 9.11 Kaiten reserves the right to modify this Agreement at any time without giving Customer any prior
Customer’s use of Kaiten Software following any such modification constitutes Customer’s agreement to follow and
bound by this Agreement as modified. Any additional terms and conditions, disclaimers, privacy policies and
policies applicable to general and specific areas of Kaiten Software or to particular subscription services are
- 10.12 In the event of any conflict between the terms of this Agreement and the terms available on our
terms of this Agreement shall supersede to the extent of such conflicting terms.
Functionality. Kaiten Software functionality includes but not limited to:
- 1. Visual process management software.
- 2. Analysis & statistics management.
- 3. Networking system, including and not limited to the ability to information with company's teams.
- 4. Communication center.
- 5. Kaiten.io.
The above mentioned features are the main features of the Kaiten Software and is not meant to be exhaustive. Some of
these features may be available only in certain version and in certain plan of the Kaiten Software which the
Customer intends to purchase.