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. Definitions.

  • 1.1 “Kaiten Software” shall mean, collectively or individually, the software created/ designed by Kaiten identified 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 Kaiten 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 the 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 Customer(s).
  • 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 Kaiten to the Customer under this Agreement. Additionally, Kaiten may include Customer’s name and/or logo within its list 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 the functions described under Exhibit A, attached hereto, for the Purpose. Customer shall not allow any website that is not fully owned by Customer to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site 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 to the Kaiten Software.
  • 2.4 Free Trial​. Kaiten may offer at its discretion, a free trial of the Kaiten Software for a specified time 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 during 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 fee 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 such 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 to 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 or provided at additional charge. Customer hereby agrees and acknowledges that Kaiten reserves the right to extend or withdraw one of the functionalities on Kaiten Software provided to Customer at Kaiten’s sole discretion, based on 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 Software. 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 is 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 and 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 limitation: (i) converting the Kaiten Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Kaiten Software by using any means or methods to translate machine-dependent or machine-independent 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 any approximation thereof by, for example, studying Kaiten Software’s behavior in response to a variety of inputs; (iv) 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 Software only at Customer’s place of business or in the presence of Customer personnel. Customer is fully liable for the acts 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 service made available by Kaiten on the Kaiten Software. Any communication sent by the Customer to its clients or customers (whether or not End-Users) based on information collected by the Customers of its clients or customers will be sole responsibility of the Customer. The Customer must ensure accuracy of such communication sent, and must ensure that 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 of Kaiten.

4. Confidentiality.

  • 4.1 Confidential Information​. The parties to this Agreement undertake to retain in confidence all information 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 and 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 shall 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 Confidential Information, as can be shown by tile written records of the receiving party; (d) is lawfully obtained from a third 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 by a court or other governmental authority, provided that the receiving party promptly notifies the disclosing party of the disclosure requirement and cooperates with the disclosing party (at the latter’s expense and at its request) to resist or limit the disclosure.
  • 4.3 Protection of Confidential Information​. Each party agrees to protect the other party’s Confidential Information 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 party 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 such information to the Representatives protecting such Confidential Information from unauthorized disclosure or improper 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 which 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 you 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 any third party; (c) information given to Kaiten or uploaded on the Kaiten Software by the Customer will always be true, 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 the User Content with an account of such user as may be created by such user through the Kaiten website and for Kaiten 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 any unauthorized and unlawful purpose; (e) Customer will not engage in any activity that interferes with or disrupts the 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 and relating to the use of the Kaiten Software under this Agreement; and (h) Customer will be subscribing to the Kaiten 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 of merchantability or fitness for a particular purpose or use or non-infringement. Kaiten does not authorize anyone to make a warranty on Kaiten’s behalf and You may not rely on any statement of warranty as a warranty by Kaiten.

6. Indemnity.

  • 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 notice in writing of any such suit ​and permits Kaiten, through counsel of its choice, to answer the charge of infringement and defend such claim or suit; (b) the Customer provides information, assistance and authority to enable Kaiten to defend such suit; and (c) Kaiten shall not be responsible for any settlement made by the Customer without Kaiten’s 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 the Kaiten Software in question; or (b) replace or modify the Kaiten Software to make it non-infringing, provided that substantially the same function is performed by the replacement or modified Kaiten Software; or (c) if the right to use cannot be procured or the Kaiten Software cannot be replaced or modified, Kaiten shall accept the return of the Kaiten Software and reimburse the Customer for any payments made in advance for the un-used term of the Agreement. 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 proprietary rights arising in whole or in part from changes made to any Kaiten Software by any party other than Kaiten; and (c) where the allegedly infringing activity continues after the Customer has been notified thereof or has been informed 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 (1) year periods unless a party expresses his/her/its intention to terminate the agreement by providing sixty (60) days’ 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) days period, Kaiten will investigate and ascertain the fulfilment of any ongoing subscription services or pending dues 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 such breach remains uncured for a period of thirty (30) days from the date of notification of the non-breaching party.
  • 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 from the date of termination of the Agreement, Kaiten shall have no obligation to maintain or provide any Customer data 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 the sole responsibility of the Customer to make a copy of their data before terminating the subscription. End-Users data will not be available after termination of subscription in such cases.

9. General.

  • 9.1 Assignment. ​The Customer may not assign this Agreement or any rights herein without the prior, written consent of Kaiten.
  • 9.2 Waiver. Failure or delay on the part of a party to exercise any right, power, privilege or remedy hereunder shall not constitute a waiver thereof. A waiver of default shall not operate as a waiver of any other default or of 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 express 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 its 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 131, 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 for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.
  • 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 contractual obligation between Kaiten and the Customer will be governed by the laws of Cyprus. Any dispute, claim or controversy arising out of or relating to this Agreement, including the determination of the scope or applicability of this Agreement to arbitrate shall be determined by arbitration in Cyprus, before a sole arbitrator appointed by Kaiten. The seat of such arbitration shall be Cyprus. Subject to the above mentioned Section, the courts in Cyprus shall have exclusive 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 notice. Customer’s use of Kaiten Software following any such modification constitutes Customer’s agreement to follow and be bound by this Agreement as modified. Any additional terms and conditions, disclaimers, privacy policies and other policies applicable to general and specific areas of Kaiten Software or to particular subscription services are also considered as part of this Agreement. By agreeing to these terms, Customer also agrees to the terms of use and privacy policy, which are available on our website.
  • 10.12 In the event of any conflict between the terms of this Agreement and the terms available on our website, the terms of this Agreement shall supersede to the extent of such conflicting terms.

EXHIBIT​ ​A

Kaiten Software

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.