KOGO TECHNOLOGY PLATFORM LICENSE AGREEMENT
This Kogo Technology Platform License Agreement ("Agreement") governs our licensing of the Kogo Technology Platform (defined later) to you, including all related documentation, and your use and distribution of Kogo Technology.
BY CLICKING THE "AGREE" BUTTON, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT; (B) REPRESENT THAT YOU ARE THE DULY AUTHORIZED REPRESENTATIVE OF THE CUSTOMER; AND (C) ACCEPT THIS AGREEMENT ON BEHALF OF THE CUSTOMER AND AGREE THAT THE CUSTOMER IS LEGALLY BOUND BY ITS TERMS.
"Kogo CMS Console" means the Customer management system online dashboard, console(s) and/or tool(s) provided by Kogo to Customer for licensing and administering the Services.
"Confidential Information" means confidential or proprietary information of a party which is disclosed in oral, written or any other form to the other party. This includes trade secrets, business and financial data, customer information and lists, software and any associated documentation, databases, and any passwords/other identification words/codes used to access/use the Kogo Technology Platform. Confidential Information may also include, but is not limited to, technical know-how, technical specifications, software code, manners of conducting business and operations, strategic business plans, systems, results of testing, consumer information, personal information, account information, product information, concepts, and compilations of data. In order for information disclosed orally to be considered Confidential Information, it shall be confirmed in writing by the disclosing party within thirty (30) days after such disclosure.
"Customer Application(s)" means any web page or application (including all source code and features) owned or controlled by Customer, or that Customer is authorized to use.
"Customer Materials" means all materials and information, including trademark and logo files, brand colours, brand design, specific branding concepts relating to the Customer provided to Kogo by Customer or to a Subcontractor of Kogo on behalf of Customer in connection with this Agreement, but expressly excludes Resultant Data and the Kogo Technology Platform.
"Documentation" means any and all instructions, specifications, and other documents and materials that Kogo provides or makes available to Customer in any medium, including proposals, quotations, License Fee Rate Card etc., which describe the functionality, components, features or requirements of the Kogo Technology Platform, including the installation, configuration, integration, operation, use, service, support or maintenance thereof.
“End User(s)” means the individual(s) that download, install or use the Kogo Technology Platform as a user of Customer Application.
"End User Data" means all documents, messages, graphics, process flows, charts, reports, tables, templates, images, content, files, data and other information uploaded or imported into the Customer Application by or on behalf of End User which enables Kogo to provide the Services using the Kogo Technology Platform. All right, title, and interest to End User Data shall remain with End User.
“Fees” means the amount(s) payable by Customer to Kogo for licensing the Kogo Technology Platform and availing the Services in accordance with the License Fee Rate Card and the terms and conditions contained herein.
"Fee Accrual Period" means a calendar month or another period specified by Kogo on/in the Kogo CMS Console.
"Intellectual Property Right(s)" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Kogo Technology Platform" means the platform technology and its related services licensed hereunder, including system files, packaged APIs, and SDK library files, object code, software libraries, software tools, sample source code, published specifications and documentations, their features (and underlying software / technology therein), user experience (and underlying software / technology therein) and user interface (and underlying software / technology therein), Kogo provides to Customer in connection with the Services, generally meant to be accessed and used via electronic gadgets, including but not limited to handheld devices, personal digital assistances along with the Documentation, and other documents, work product and materials related thereto that Kogo is required to or otherwise does provide to Customer in connection with the Services. Kogo Technology Platform shall include any future, updated or otherwise modified version(s) thereof furnished by Kogo in its sole discretion to the Customer.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, judgment, decree or other requirement of any central, state, local or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction, in any jurisdiction, and includes Laws relating to data protection and security.
“License Fee Rate Card” means a written order issued by Kogo (and accepted by the Customer), containing the structure for licensing of the Kogo Technology Platform, which shall also include payment related terms and conditions for providing the Services contemplated herein.
“Loss” or "Losses" means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Operating Environment" means computer systems or cloud servers on which Kogo installs, maintains and operates the Kogo Technology Platform and provides the Services.
"Process" means to take any action or perform any operation or set of operations on any data, information or other content, including without limitation to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalogue, cross¬reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase or destroy. "Processing" and "Processed" have correlative meanings.
"Resultant Data" means copies, analyses, excerpts, reports, abstracts, modifications, summaries, enhancements, aggregations, information, data and other content Processed by Kogo or a Subcontractor that is derived by or through the Kogo Technology Platform and the Services (e.g., technical information about your operating environment and sessions, systems architecture, page loads and views, metadata, product versions, number and type of searches, number of users, source type and format etc.).
“Third Party/ies” means any person (including individual, companies, partnerships, legal entities) who is not a party to this Agreement.
"Third Party Materials" means materials and information, in any form or medium, including any software (including opensource software), documents, data, content, specifications, products, equipment or components of or relating to the Kogo Technology Platform or the Customer Application that are not proprietary to either Kogo or Customer, as the case may be.
2.ENGAGEMENT OF KOGO
2.1 Engagement of Kogo. In consideration of the receipt of the Fees, Kogo licenses the Kogo Technology Platform to the Customer and agrees to provide services described in the Documentation (collectively, the "Services") on the terms and conditions set forth in this Agreement. In addition, the Customer may choose separately to engage Kogo and Kogo may accept such engagement (on separate and mutually agreed terms and conditions) to implement or integrate the Kogo Technology Platform in to the relevant Customer Application for which the Customer has acquired the license pursuant to the Documentation.
2.2 Subcontractors. Kogo may from time to time, in its discretion, engage Third Parties to perform the Services (each, as "Subcontractor") It is clarified that before engaging any Subcontractor, KOGO shall ensure that such Subcontractor is fully aware of and has agreed to obligations no less onerous than the terms hereof. KOGO shall be liable to the extent of Services provided by such Subcontractor for any breach of such obligations.
3.KOGO TECHNOLOGY PLATFORM
3.1 Kogo Technology Platform. Customer acknowledges and agrees that Customer has no right under this Agreement to receive the source code including all comments, notes, flow charts and other human readable references for the Kogo Technology Platform, which remains Kogo’s property and is governed as per the terms of this Agreement.
3.2 Kogo CMS Console. Customer will use the Kogo CMS Console to access the Services and its API key(s) in accordance with the Documentation. Customer must list in the Kogo CMS Console each authorized domain and application that uses the Services. Customer is responsible for ensuring that only authorized domains and applications use the Services.
3.3 Third Party Materials. The Kogo Technology Platform may include or operate in conjunction with Third Party Materials. All Third Party Materials are provided pursuant to the terms and conditions of the applicable Third Party license agreement. Customer will comply with all such Third Party license agreements and any breach by Customer thereof will be deemed a breach of this Agreement.
3.4 Review of Customer Application. At Kogo’s request, Customer will provide Kogo access to the Customer Application for review to ensure compliance with this Agreement.
3.5 Resultant Data. All right, title, and interest to Resultant Data shall remain with and is hereby assigned to Kogo. Customer agrees that the Resultant Data may be utilised by Kogo for a variety of reasons, such as to identify, understand and anticipate performance issues and the factors that affect them, to provide Updates and personalised experiences to End Users, including but not limited to improving the Kogo Technology Platform and the services available therein.
4.1 Customer Cooperation. The Customer agrees to use the Kogo Technology Platform only for purposes that are permitted by this Agreement and in accordance with all applicable Laws. Customer will provide in a reasonable timeframe the Customer Materials and all such other resources (including suitable project manager from its side) as reasonably requested by Kogo and provide all cooperation and assistance Kogo reasonably requests to enable Kogo to exercise its rights or perform its obligations under this Agreement. Kogo is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement. In the event of any such delay or failure, Kogo may, by notice to Customer, extend all or any subsequent due dates as Kogo deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Kogo may have for any such failure or delay by Customer.
4.2 Customer Restrictions. The Customer agrees not to:
(a) utilise the Kogo Technology Platform with any hardware, system or other software or materials not provided or authorized in writing by Kogo;
(b) modify the Kogo Technology Platform other than through Kogo; and
(c) fail to implement any modifications, upgrades, replacements or enhancements to the Kogo Technology Platform as and when made available to Customer.
4.3 Responsibility for End User Data. Customer is entirely responsible for any and all activities that occur in the Customer Application, including with the End User Data. Kogo is entirely responsible for any and all activities that occur in the Kogo Technology Platform, including with the End User Data. Any legal obligations or penalty arising out of such usage of End User Data by either Customer or Kogo, as the case may be, in violation of privacy of any End User will be handled solely by the concerned Party.
Parties agree that the Customer Application will prominently display the words “Powered by Kogo” attribution (including branding, logos, and copyright and trademark notices of Kogo), on the splash screen and other mutually agreed upon locations on/in the Customer Application and will not modify, obscure or delete any such attribution.
6.UPDATES & DOWNTIME
6.1 Updates. Kogo will, from time to time, update the Kogo Technology Platform (the “Updates”). Such Updates will be considered part of the Kogo Technology Platform and subject to the terms and conditions of this Agreement. Kogo does not guarantee that any future versions of the Kogo Technology Platform will be compatible with prior versions or that they will be compatible with any applications or solutions the Customer has developed.
6.2 Scheduled Downtime. Kogo will provide Customer with a minimum of two (2) days advance notice of scheduled downtime, and post a notice on the Kogo CMS Console to notify Customer of any scheduled downtime that will exceed two (2) hours.
6.3 Unscheduled Downtime. Kogo will use its best efforts to ensure that the Operating Environment will be available 24 hours per day, 7 days per week, excluding any scheduled downtime as contemplated in Clause 6.2 above.
7.INVOICING AND TAXES
7.1 Online Billing. Pricing and charges shall be as mentioned in the License Fee Rate Card. At the end of the applicable Fee Accrual Period, Kogo will issue an electronic bill/invoice to Customer for all charges accrued based on Customer’s use of the Services during the previous Fee Accrual Period. Customer will be responsible to pay all Fees in the currency set forth in the invoice. If Customer elects to pay by credit card, debit card, or other non-invoiced form of payment, Kogo will charge (and Customer will pay) all Fees immediately at the end of the Fee Accrual Period. Customer’s obligation to pay all Fees is non-cancellable. Kogo's measurement of Customer’s use of the Services is final. Kogo has no obligation to provide multiple bills. Payments made via wire transfer must include the bank information provided by Kogo.
7.2 Delayed Payments. If Customer’s payment of the Fees is overdue by more than seven (7) days, from the invoice due date, then interest will be charged on the overdue amounts at twenty four percent (24%) per annum from the date the fees are due until paid in full to the customer in the subsequent bill; Additionally, Kogo may, at its option: (a) suspend providing the Services; or (b) terminate this Agreement. Customer will reimburse Kogo for all reasonable expenses (including attorneys’ fees) incurred by Kogo in collecting overdue payments.
7.3 Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) related to the Subscription, except any taxes assessed upon Kogo’s net income or employees. If Kogo is required to directly pay Taxes related to Customer’s use of the Kogo Technology Platform, Customer agrees to promptly reimburse Kogo for any Taxes so paid by Kogo.
7.4 No Deduction or Setoff. Customer will pay all amounts due under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed or payable by Kogo whether under this Agreement, applicable Law or otherwise and whether relating to Kogo's breach, bankruptcy or otherwise. Any amounts already paid to Kogo shall, at all times and in all circumstances, be non- refundable.
8.INTELLECTUAL PROPERTY RIGHTS
8.1 Kogo Technology Platform. Except as set forth in this Clause 8, all right, title and interest in and to: (a) the Kogo Technology Platform; (b) Resultant Data; and (c) all works, inventions and other subject matter incorporating, based on, or derived from any other API, SDK and/or Resultant Data, including all customizations, enhancements, improvements, machine learning algorithms and improvements thereon and other modifications thereof (collectively, "Derivatives"), by whomsoever made and including all Intellectual Property Rights therein, are and will remain with Kogo. Customer has no right or license with respect to any other API, SDK or Derivatives except as expressly licensed herein. All other rights in and to the Kogo Technology Platform and Derivatives are expressly reserved by Kogo. The Customer’s use of any trade names, logos, trademarks, service marks and other marks of Kogo is subject to Kogo’s prior written approval. Any goodwill arising out of the use thereof shall inure to the benefit of Kogo.
8. 2 Customer Materials. Customer warrants that Customer has rights in and to the Customer Materials, including all rights needed to effectuate the terms of this Agreement. As between the parties, Customer has always been and shall always be the owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted herein. Nothing Contained in this Agreement shall mean to convey the transfer of any Intellectual Property Rights to KOGO.
8.3 End User Data. Parties agree that End User is the owner of all right, title, and interest in and to the End User Data, including all Intellectual Property Rights therein and Customer will acquire the necessary licenses from the End User to enable Customer’s usage of the said End User Data in the Kogo Technology Platform. Parties further acknowledge that End Users shall be free to utilise the Kogo Technology Platform independent of the Customer Application.
9.1 Kogo License. Subject to and conditioned upon Customer's payment of the Fees and compliance with and performance in accordance with all other terms and conditions of this Agreement, Kogo hereby grants to Customer a non-exclusive, non-transferable and non-sub licensable, license:
to install, operate and use the Kogo Technology Platform for the Term of the Agreement, solely as part of the Customer Application which shall be in accordance with the Documentation;
to use the Documentation and the Kogo Technology Platform solely in connection therewith; and
subject to Clause 4.4, to market and distribute the Kogo Technology Platform to End Users.
9.2 Kogo EULA. Customer acknowledges and agrees that Kogo may have its own EULA with End Users (the “Kogo End User License Agreement”).
9.3 Third Party Restrictions. With the exception of End Users who have either accepted the Kogo End User License Agreement or the Customer End User License Agreement, Customer will not permit any other Person to, access or use the Kogo Technology Platform.
9.4 License Restrictions. For purposes of clarity and without limiting the generality of the foregoing, Customer will not cause or negligently allow any party, except as this Agreement expressly permits, to:
copy, modify, or create derivative works or improvements of the Kogo Technology Platform ;
rent, lease, lend, sell, sublicense, assign, publish, transfer, or otherwise make available the Kogo Technology Platform to any other Person, including through or in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service;
reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Kogo Technology Platform or any part thereof;
remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from Kogo Technology Platform, including any copy thereof;
use Kogo Technology Platform in a manner or for any purpose that infringes, misappropriates or otherwise violates any Law or Intellectual Property Right;
otherwise use the Kogo Technology Platform beyond the scope of the license granted herein.
9.5 Customer Materials License. Customer hereby grants to Kogo a fully paid-up and royalty free, non-exclusive right and license to use and display the Customer Materials in association with the Kogo Technology Platform and as otherwise described herein during the Term of the Agreement.
9.6 Usage Rules. This license is also subject to (i) usage rules of any Third Party APIs and technologies which are a part of the Kogo Technology Platform, such as Google Search or Mapbox; (ii) the terms of any mobile application retailer where the Customer Application is acquired, such as the usage rules of Apple Inc.'s App Store Terms of Service or the terms of service of Google Inc.'s Android Market.
10.1 Non-Disclosure. Each party will use the other’s Confidential Information only to perform its obligations / rights hereunder, and for the purposes of, this Agreement. Each party will maintain the confidentiality of the other’s Confidential Information in the same manner in which it protects its own information of like kind, but in no event will either party take less than reasonable precautions to prevent the unauthorized use or disclosure of the Confidential Information. Each party is permitted to disclose Confidential Information to its employees and authorized subcontractors on a need to know basis only, provided that all such subcontractors have written confidentiality obligations to that party.
10.2 Unauthorized Disclosure. Each party will be responsible for, and will indemnify and hold harmless the other party against, any damages arising from any unauthorized disclosure of the other party’s Confidential Information.
The confidentiality provisions of this Agreement do not apply to information that is entirely in the public domain; was known to the party prior to access to the information; was received lawfully from a third party through no breach of any obligation of confidentiality owed to the other party; or is created by that party’s employees independently of the other party’s Confidential Information.
Nothing in this Agreement will be deemed to prevent either party from disclosing any Confidential Information received hereunder pursuant to any regulatory or supervisory authority having appropriate jurisdiction, or any applicable Law, provided that: (i) such disclosure will be limited to the minimum acceptable level of disclosure; (ii) that such party, unless prohibited by such regulatory or supervisory authority, or such Law, will notify the other party of the imminent disclosure as soon as is practicable and in all events with sufficient prior notice to allow that party to seek a protective order or otherwise to object; and (iii) that the disclosing party will minimize or prevent such disclosure to the maximum extent allowed under applicable Law.
Each party will promptly inform the other party of any actual or suspected breach of this Clause 10 by it (including its contractors and agents) upon becoming aware of such actual or suspected breach and agrees to reasonably cooperate with the other party in the incident response process.
10.4 Survival. The provisions of this Clause 10 will survive termination of this Agreement for a period of five (5) years and will inure to the benefit of the parties and their respective successors-in-interest and assigns, except that Kogo’s rights relating to Resultant Data shall survive in perpetuity.
11.TERM AND TERMINATION
11.1 Term. This Agreement shall be valid for a period of fourteen (14) months, which shall commence from the date of clicking the ‘AGREE’ button (“Term”)..
11.2 This Agreement shall automatically renew unless Customer provides notice in writing to Kogo of Customer’s desire to terminate the Agreement at least thirty (30) days prior to the last day of the Term (and the definition of Term shall apply to any such renewed period).
11.3 Termination. Parties may terminate this Agreement, without assigning any reason or any clarification, by serving a notice of six (6) months prior in advance in writing /in email. Upon the completion of the initial Term and if this Agreement is automatically renewed pursuant to Clause 11.2, either party may thereafter terminate this Agreement, without assigning any reason or any clarification, with ninety (90) days’ written notice to the other party. Either party may terminate this Agreement immediately based on a breach of this Agreement if the breach is incapable of cure; or if being capable of cure, the breach remains uncured for fifteen (15) days after the non-breaching party provides the breaching party with written notice of such breach. Either party may terminate this Agreement, effective immediately, if the other party becomes insolvent, files or has filed against it voluntary or involuntary bankruptcy, or is generally unable to pay, or fails to pay, its debts as they become due.
11.4 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement:
all licenses granted by either party to the other will also expire or terminate;
the rights and access to the Kogo Technology Platform will terminate;
all Fees owed by Customer to Kogo are immediately due upon receipt of the final electronic bill;
Customer will delete any software and/or content relating to the Kogo Technology Platform and the Resultant Data from the Customer Application; and
Customer will delete all references to the Kogo Technology Platform and the attributions contemplated in Clause 5 hereof.
Without limiting the above, all licenses granted to Customer in the Kogo Technology Platform will also terminate and Customer will immediately cease all use and distribution of the Kogo Technology Platform.
During the Term of this Agreement and for three (3) years after, either party will not assist any other Person to, directly or indirectly, recruit or solicit for employment any Person then or within the prior twelve (12) months employed . In the event of a violation of this Clause 12 the affected party will be entitled to liquidated damages equal to the compensation paid by it to the concerned employee during the prior twenty four (24) months.
13.REPRESENTATIONS AND WARRANTIES
13.1 Customer Representations & Warranties. Customer represents and warrants that it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; has the full right, power and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement; and the execution of this Agreement by Customer’s representative has been duly authorized by all necessary corporate or organizational action of such party.
13.2 Disclaimer of Warranties. The Kogo Technology Platform and the Services are provided "as is" and Kogo hereby disclaims all warranties, whether express, implied, statutory or other, and Kogo specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and all warranties arising from course of dealing, usage or trade practice. without limiting the foregoing, Kogo makes no warranty of any kind that the Kogo Technology Platform, or any products or results of the use thereof, will meet Customer's, End Users or any other Person's requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system or other services, or be secure, accurate, complete, free of harmful code, or error free. All Third Party Materials are provided "as is" and any representation or warranty of or concerning any Third Party Materials is strictly between Kogo or Customer, as the case may be, and the Third Party owner or distributor of the Third Party Materials.
14.1 Kogo Indemnification. Kogo will indemnify, defend, and hold harmless Customer and its Subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors-in-interest and permitted assigns from and against a Loss arising out of or relating to any claim, suit, action or proceeding (an "Action") by a Third Party alleging that Customer's use of the Kogo Technology Platform (excluding Customer Materials, End User Data and Third Party Materials) in compliance with this Agreement infringes any third party Intellectual Property Right.
14.2 Customer Indemnification. Customer will indemnify, defend, and hold harmless Kogo and its Subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors-in-interest and assigns (each, a "Kogo Indemnitee") from and against any and all Losses incurred by any Kogo Indemnitee in connection with any Action by a Third Party arising out of or relating to: (a) Customer’s or End User’s installation or use of the Kogo Technology Platform in violation of this Agreement; (b) Customer Materials, or Kogo's use thereof, in accordance with this Agreement; (c) Kogo's compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by Kogo; (d) Customer Application; or (e) any allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under this Agreement.
14.3 Indemnification Procedure. Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified. The party seeking indemnification (the "Indemnitee") will cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor will immediately take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Clause 14 will not relieve the Indemnitor of its obligations herein except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
14.4 Sole Remedy. This Clause 14 sets forth Customer's sole remedies and Kogo's sole liability and obligation for any actual, threatened, or alleged claims that this Agreement or any subject matter hereof infringes, misappropriates or otherwise violates any Third Party Intellectual Property Right.
15.LIMITATION OF LIABILITY
15.1 Exclusion of Damages. In no event will Kogo or any of its licensors, service providers or suppliers be liable under or in connection with this Agreement or its subject matter under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, for any: (a) loss of production, use, business, revenue or profit, loss of data or diminution in value; or (b) consequential, incidental, indirect, exemplary, special, enhanced or punitive damages, regardless of whether such Persons were advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
15.2 Cap on Monetary Liability. In no event will the collective aggregate liability of Kogo and its licensors, service providers and suppliers under or in connection with this Agreement or its subject matter, including pursuant to Clause 14.1 above, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total amount of Fees paid to Kogo by Customer in the two (2) calendar months immediately preceding the event giving rise to liability. The foregoing limitation applies notwithstanding the failure of any agreed or other remedy of its essential purpose.
In no event will Kogo be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Kogo's reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, lockdowns, epidemic, pandemic, quarantine, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labour stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. If any of the aforesaid events continues for a period of more than sixty (60) days, either party shall be free to forthwith terminate this Agreement and the provisions of Clause 11.4 shall apply.
17.1 Further Assurances. Upon a party's reasonable request, the other party will, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
17.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
17.3 Public Announcements. Neither party will issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party's trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed, provided, however, that Kogo may, without requiring Customer's consent, include Customer's name, and/or other indicia in its lists of Kogo's current or former customers of Kogo in promotional and marketing materials, including without limitation on Kogo’s website.
17.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to Kogo at such address as Kogo may designate from time to time in accordance with this Clause 17.4. Notices sent in accordance with this Clause 17.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by courier, signature required; (c) when sent, if by e-mail, with confirmation of transmission, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the 3rd day after the date posted by registered mail.
17.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
17.6 Entire Agreement & Survival. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In addition to survival of terms as expressly described herein, all terms that by their nature should survive the termination or expiration of the agreement shall survive.
17.7 Assignment. Customer will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, without Kogo's prior written consent, provided, however, that Customer may assign this Agreement without written consent in connection with the transfer or sale of all or substantially all of its business related to this Agreement, or in the event of its merger, consolidation, change in control or similar transaction. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors-in-interest and assigns.
17.8 No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors-in-interest and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
17.9 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17.10 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
17.11 Governing Law and Jurisdiction. The parties agree that this Agreement shall be governed by Indian Laws and subject to Clause 17.12 below, the Courts at Mumbai, India shall have sole and exclusive jurisdiction with regard to the subject matter of this Agreement. All remedies shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.
17.12 Alternate Dispute Resolution. The parties agree that they shall, at all times, act in good faith, and make all attempts to resolve all differences whatsoever arising out of or in connection with this Agreement by discussion failing which, such dispute shall be referred to and finally resolved by a sole arbitrator appointed in accordance with the provisions of the Arbitration and Conciliation Act, 1996. The place of arbitration shall be Mumbai, India and the language to be used in the arbitral proceedings shall be English.
17.13 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach of any of its obligations under Clauses 8, 9 or 10 would cause Kogo irreparable harm for which monetary damages would not be an adequate and agrees that Kogo will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
17.14 Data Protection. The Customer will establish and maintain administrative, physical and technical safeguards that prevent the unauthorized access, use, storage, or disclosure of Resultant Data and ensure compliance with applicable data security and privacy laws. Without prejudice to the foregoing, the Customer will not, directly or indirectly, sell, rent, disclose, distribute, commercially exploit, or transfer any Resultant Data and will not collect, access, utilize, process, store, copy, modify, create derivative works of, or disclose any Resultant Data. In the event that the Customer transfers or provides any data or information (including third party data or information collected by it) to Kogo, it shall do so in compliance with all applicable data security and privacy laws, including providing all notices and obtaining all consents as may be required under applicable Laws.
17.15 Conflicting Terms. In the event of a conflict between this Agreement and the Documentation, the latter will prevail. In the event of a conflict between Customer End User License Agreement and Kogo End User License Agreement, the latter will prevail. In the event of a conflict between the Customer End User License Agreement and this License, the latter will prevail.
17.16 Survival. Clauses 7, 8, 9, 10, 11.4, 12, 14, 15 and 17 shall survive expiration or termination of this Agreement.
Last Updated : 08 March 2021