saas-agreement

Software as a Service Agreement

WE KINDLY ASK THAT YOU READ THIS AGREEMENT BEFORE USING OUR SERVICES. BY ACCESSING OR USING OUR SOFTWARE OR SERVICES OFFERING, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

1. BACKGROUND

1.1 Kanda ApS, a private limited company registered in Denmark under CVR no. 33590369 (“Kanda”), offers to its Customers an online training platform and course tool (the “Simulator System”). The Simulator System is made available to the Users over the internet as Software as a Service.

1.2 This Software as a Service agreement (“Agreement”) is entered into between a Customer (as defined below) and Kanda. Kanda and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and orders placed thereunder.

2. DEFINITIONS

2.1 For purposes of this Agreement, the definitions set forth below apply:

“Agreement” means this “software as a service” agreement, including any and all appendices, exhibits etc.

“User” means the agreed number of named or specified (by username or other user identification) individuals authorized by Customer to use the Services. Users may include the employees of Customer and the employees of third party independent contractors or third party consultants of Customer; provided, however, that any third party’s access to and use of the Service is limited to use solely in connection with Customer’s business operations. Customer acknowledges and agrees that it is responsible for ensuring that usage of the Service by any third party is in accordance with the terms and conditions of this Agreement. A breach of this Agreement by a User shall be deemed a breach by Customer.

“Customer Data” means all data and materials provided by Customer to Kanda for use in connection with the Services, including, without limitation, User applications, data files, and graphics.

“Documentation” means the reference manuals/materials, online presentations, and other information describing the SaaS and/or Services provided or otherwise made available to Customer. Documentation includes specifications for the Services set forth in any Order Form.

“Effective Date” means the date where the Agreement commences, either the date of the Customer’s accept of the Agreement, or another date as agreed by the parties.

“Simulator System” means the online training and course tool offered by Kanda to its Customers.

“Host” means the computer equipment on which the Software is installed, which is owned and operated by Kanda or its subcontractors.

“Kanda” means Kanda ApS, a private limited company registered in Denmark under CVR no. 33590369

“Maintenance Services” means the support and maintenance services provided by Kanda to Customer according to this Agreement.

“Other Services” means all technical and non-technical services performed or delivered by Kanda under this Agreement, including, without limitation, implementation services and other professional services, training and education services but excluding the SaaS Services and the Maintenance Services. Other Services will be provided on a time and material basis at such times or during such periods, as may be specified in an Order Form and mutually agreed to by the parties.

“Services” means all services, not limited to Saas Services, Maintenance Services and Other Services delivered by Kanda to Customer under this Agreement.

“Order Form" means any online or written order form for Services, submitted by Customer either during an online order process (via a Kanda website, via email or pdf), or separately signed by Customer and submitted to Kanda, and any future purchase order or order form that makes reference to this Agreement.

“Software” means the object code version of any software to which Customer are provided access as part of the Service, including any updates or new versions.

“SaaS Services” refer to the specific Kanda internet-accessible service identified in an Order Form that provides use of Kanda’ Software that is hosted by Kanda or its services provider and made available to Customer over a network on a term-use basis.

“Subscription Term” shall mean the period specified in an Order Form during which a Customer will have on-line access and use of Services. The Subscription Term shall renew for successive 12-month periods unless either party delivers written notice of non-renewal to the other party at least 30 days prior to the expiration of the then-current Subscription Term.

“Customer” means you and any company you represent. BY CLICKING THE “I ACCEPT” BUTTON, SIGNING (EXECUTED IN ONE OR MORE COUNTERPARTS), OR OTHERWISE ACCEPTING THIS AGREEMENT AS SET FORTH IN ANY ONLINE, PRINTED ORDER FORM REFERENCING THIS AGREEMENT, OR OTHER PRINTED OR ELECTRONIC FORM, YOU AND ANY COMPANY YOU REPRESENT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU ARE REPRESENTING TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT, AND THE TERM “YOU” SHALL REFER TO YOUR COMPANY.

3. SAAS SERVICES

3.1 During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services, and allow the agreed number of Users enrolled by Customer to access and use the Services, solely for Customers internal business operations and subject to the terms of the Agreement. Customer may, subject to the conditions on any Order Form, allow its Users to use the Services for this purpose. Customer is responsible for its Users’ compliance with the Agreement.

3.2 Customer acknowledges that this Agreement is a services agreement and Kanda will not be delivering copies of the Software to Customer as part of the Services.

4. RESTRICTIONS

4.1 Customer shall not, and shall not permit anyone to: (i) copy or republish the Services, (ii) make the Services available to any person other than Users, (iii) use or access the Services for timesharing, (iv) modify or create derivative works based upon the Services or Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software or Services or in the Documentation, (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the Services, except and only to the extent such activity is expressly permitted by applicable law, or (vii) access the Services or use the Documentation in order to build a similar or competitive product.

4.2 Kanda owns all right, title and interest in and to the Software, Services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein.

5. CUSTOMERS RESPONSIBILITIES

5.1 Customer shall provide commercially reasonable information and assistance to Kanda to enable Kanda to deliver the Services.

5.2 Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Kanda exercises no control over the content of the information transmitted by Customer through the Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

5.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the purpose the Services are provided for and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Kanda against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Kanda has no obligation to monitor Customer’s use of the Services, Kanda may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

5.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to User passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

5.5 Customer is solely responsible for collecting, inputting and updating all Customer Data stored on the Host, and for ensuring that the Customer Data does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious.

5.6 Customer shall: (i) notify Kanda immediately of any unauthorized use of any password or User id or any other known or suspected breach of security, (ii) report to Kanda immediately and use reasonable efforts to stop any unauthorized use of the Services that is known or suspected by Customer, and (iii) not provide false identity information to gain access to or use of the Services.

5.7 Subject to the terms and conditions of this Agreement, Customer grants to Kanda a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Data solely as necessary to provide the Services to Customer.

6. SECURITY AND PASSWORDS

6.1 Kanda will provide Customer with a username and/or password for each User. At the initial login, each User will be given the option to change the default password provided by Kanda to a personalized password that will enable such User to access the Services in accordance with this Agreement. The transmission of any User’s name or Password to allow any other person to use the Services is expressly prohibited.

6.2 If Kanda reasonably believes that a User is causing Customer to breach this Agreement or is in any way mishandling a password or using the Services in violation of this Agreement, then Kanda may, at its sole discretion, suspend User’s access to the Services indefinitely. All use of passwords assigned to Customer and its Users shall be at Customer’s sole responsibility and risk. Customer shall not, and shall cause its Users not to, disclose, transfer or disseminate any Password to any third party.

6.3 The Customer agrees that it shall be responsible and liable for any costs or expenses arising from or related to, any misuse of passwords or any Services, or other breaches of the restrictions or conditions contained in this Agreement, by Customer’s Users or other personnel.

7. CONFIDENTIALITY; PROPRIETARY RIGHTS

7.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Kanda includes non-public information regarding features, functionality, and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Kanda to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.

7.2 The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

7.3 Customer shall own all right, title, and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Kanda shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

7.4 Notwithstanding anything to the contrary, Kanda shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom). Kanda will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Kanda offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

7.5 Kanda shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, relating to the operation of the Services.

8. ORDERS AND PAYMENT

8.1 The fees for the Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable and non-refundable except as set forth in the Order Form and this Agreement. Customer must provide Kanda with complete and accurate billing and contact information.

8.2 Where payment by credit card is agreed in the Order Form, or Customer provides Kanda with credit card information, Customer authorize Kanda to bill such credit card (a) at the time that Customer order the Services, (b) for any billing frequency otherwise established in the Order Form, and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Term.

8.3 Kanda may, in its own discretion, permit Customer to make payment using a method other than a credit card. Kanda will then invoice Customer on an annual basis for an annual subscription and a monthly basis for a monthly subscription in advance of the relevant billing period, and all such amounts invoiced will be due within 30 days of Customers receipt of Kanda’ invoice. Late payments shall be subject to a service charge of one and one-half percent (1.5%) per month, or the maximum charge permitted by law, whichever is less.

8.4 Customer shall pay all personal property, sales, use, value-added, withholding, and similar taxes (other than taxes on Kanda’s net income) arising from the transactions described in this Agreement, even if such amounts are not listed on an Order Form.

8.5 Kanda may terminate or suspend Customers access to Services (i) if the billing or contact information provided by is false or fraudulent or (ii) any payment under this Agreement is late by more than 30 days. Customer agrees that Kanda shall not be liable to User or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the Services resulting from Customers nonpayment.

9. TRIAL USE OF THE SERVICES

9.1 If specified in the Order Form or elsewhere, Customer may order certain Services for trial, nonproduction purposes subject to the terms and conditions of the Agreement. Services acquired for trial purposes are provided “as is” and Kanda does not offer any warranties for such Services.

10. TERM AND TERMINATION

10.1 The term of this Agreement shall begin on the Effective Date and shall continue until terminated by either party as outlined in this section or with a notice of 30 days to the end of a Subscription Term.

10.2 Either party may terminate this Agreement immediately upon a material breach by the other party that has not been cured within fourteen (14) days after receipt of notice of such breach.

10.3 Upon any termination, Kanda will make all Customer Data available to Customer for electronic retrieval for a period of ten (10) days, but thereafter Kanda may, but is not obligated to, delete stored Customer Data. All sections of this Agreement, which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

11. WARRANTIES

11.1 Kanda shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner, which minimizes errors and interruptions in the Services and shall perform the Services in a professional and competent manner.

11.2 Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Kanda or by third-party providers, or because of other causes beyond Kanda reasonable control, but Kanda shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, KANDA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND KANDA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. KANDA DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE VIRUS-FREE, NOR SHALL KANDA BE LIABLE FOR UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CUSTOMERS DATA.

11.3 Basis of the Bargain: Customer acknowledges that Kanda has set its prices and entered into this Agreement in reliance upon the Warranty Disclaimer and Limitation of Liability set forth in this Agreement, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitation of liability specified in this Agreement will survive and apply even if the warranty disclaimer or any limitation of remedies is found to have failed of its essential purpose. Notwithstanding the foregoing, nothing contained herein shall limit Kanda’s liability for its own willful or wanton conduct.

12. LIMITATIONS OF LIABILITY

12.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, KANDA AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF CUSTOMER DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND KANDA REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO KANDA FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT KANDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. INDEMNIFICATION

13.1 Indemnification by Kanda.

13.1.1 If a third party makes a claim against Customer that the Services infringes any patent, copyright or trademark, or misappropriates any trade secret, or that Kanda’ negligence or willful misconduct has caused bodily injury or death, Kanda shall defend Customer and its directors, officers and employees against the claim at Kanda’ expense and Kanda shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Kanda, to the extent arising from the claim.

13.1.2 The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Kanda, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Kanda, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement,(vi) claims related to Customers Data or (vii) where Customer’s use of the Service is not strictly in accordance with this Agreement.

13.1.3 If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Kanda to be infringing, Kanda may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

13.2 Indemnification by Customer.

13.2.1 If a third party makes a claim against Kanda that the Customer Data or any portions or components of the Services as mentioned in section 14.1.2 infringes any patent, copyright or trademark, or misappropriates any trade secret, Customer shall defend and hold harmless Kanda and its directors, officers and employees against the claim at Customers expense and Customer shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Customer, to the extent arising from the claim.

13.3 A party seeking indemnification under this section shall (a) promptly notify the other party of the claim, (b) give the other party sole control of the defense and settlement of the claim, and (c) provide, at the other party’s expense for out-of-pocket expenses, the assistance, information, and authority reasonably requested by the other party in the defense and settlement of the claim.

14. FORCE MAJEURE

14.1 Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, failure or interruption or termination of a necessary third party service, acts of terrorism, or the stability or availability of the Internet or a portion thereof., acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.

15. PERSONAL DATA

15.1 In performing the Services, Kanda will comply with the Kanda Privacy Policy, which is available here and incorporated herein by reference. The Kanda Privacy Policy is subject to change at Kanda discretion.

15.2 Kanda reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide.

15.3 Customer agrees to provide any notices and obtain any consents related to Customer’s and Users’ use of the Services and Kanda’ provision of the Services, including those related to the collection, use, processing, transfer, and disclosure of personal information. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of its data.

16. GENERAL PROVISIONS

16.1 Non-Exclusive Service. Customer acknowledges that Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Kanda ability to provide the Services or other technology, including any features or functionality first developed for Customer, to other parties.

16.2 Assignment. Customer may not assign this Agreement or any right under this Agreement, without the consent of Kanda, which consent shall not be unreasonably withheld or delayed.

16.3 Customer Reference. Customer agrees (i) that Kanda may identify Customer as a recipient of Services and use Customer’s logo in sales presentations, marketing materials and press releases.

16.4 Statistical Information. Kanda may anonymously compile statistical information related to the performance of the Services for purposes of improving the Service, if such information does not identify Customers data or include Customers name.

16.5 Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.

16.6 Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible, the same effect as the original term, and the remainder of this Agreement shall remain in full force.

16.7 Entire Agreement. This Agreement (including all Order Forms and exhibits) contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. This Agreement may be amended solely in a writing signed by both parties. Terms and conditions provided by Customers, whether implicit or explicit, are deemed null and void unless such terms and conditions are accepted explicit in writing by Kanda.

16.8 Governing Law. This Agreement and any dispute arising out of or in connection with it, shall be governed by and construed in accordance with the Danish law, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Customer and Kanda agree to submit to venue in Aarhus, Denmark.

Aarhus, Denmark, December 2022

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