Kainos Smart Subscription Service Terms and Conditions

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

Kainos provides the Subscription Service and the Professional Services and Customer wishes to subscribe to that Subscription Service, or obtain Professional Services, or both, as detailed in an Order Form, subject to the rights and obligations of each Party as set out in the Agreement. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1  DEFINITIONS AND INTERPRETATION

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

Affiliate
Agreement
Authorised Person(s) / means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
means these Kainos Smart Subscription Service Terms and Conditions including the Smart SLA, any annexes or appendices hereto and any executed Order Form.
means Customer’s Staff, Affiliates (and Staff of Affiliates) and third parties authorised to access the Subscription Service or access and receive Customer Data by the Customer in writing, by use of a valid Customer login to the Subscription Service or by any other system integration or data exchange process.
Hosting Platform / means the Amazon Web Services cloud hosting platform set out in the Order Form.
Customer Data
Effective Date
Hourly Rate / means all electronic data or information submitted by Customer or Authorised Persons to the Subscription Service.
means the date from which the Subscription Services or the Professional Services, or both, as the context requires, will be made available to the Customer as set out in the Order Form.
means the applicable pro-rata time and materials charging rate detailed in the Order Form per Kainos resource, per Hour (or part thereof) exclusive of VAT and Expenses (which shall be invoiced in addition where applicable). Kainos reserves the right to increase the Hourly Rate and/or the charges for the provision of the Professional Services set out in the Order Form on an annual basis, PROVIDED THAT unless otherwise agreed with the Customer, any such increases shall not exceed the increase in the UK Retail Prices Index in the previous 12 months plus 2%.
Malicious Code / means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
Order Form
Professional Services
Service Hours
Services / means the document by which the Customer contracts the Subscription Services, in the event of any conflict between these Kainos Smart Subscription Services Terms and Conditions and the terms of any such Order Form, the provisions of the relevant Order Form shall prevail.
means the Kainos Professional Services to implement the Subscription Service or otherwise assist the Customer with the Subscription Service or other Workday related activities as detailed in the Order Form.
means the hours worked by Kainos in provision of Professional Services Monday to Friday between 08:00 and 18:00 GMT subject to UK public holidays and annual leave.
Means the Subscription Service and the Professional Services together.
Smart SLA
Staff
Subscription Service(s)
Subscription Term / means the service level availability applicable to the Subscription Services, which may be updated by Kainos from time to time.
means employees, consultants, workers, independent contractors, contingent workers, seasonal staff and retirees of the Customer and its Affiliates whose business records may be tested by the Subscription Service as detailed in the Order Form.
means the Kainos software as a service application known as ‘Smart’. Smart is a cloud-based, automated testing tool for Workday implementations. It provides functionality to automate the testing of Workday business processes and integrations as described in the Guides and as subscribed to under an Order Form;
means the period starting on the Effective Date and ending on the Subscription End Date, as specified in the relevant Order Form.
Guides / means the Kainos electronic and hard copy user guides for the Subscription Service which may be updated by Kainos from time to time.

2  ServiceS

2.1  Provision of Subscription Service. Kainos shall, for the Subscription Term, make the Subscription Services available to the Customer, and the Authorised Persons in accordance with the Guides and the Smart SLA, solely for Customer’s own internal business purposes subject to the terms and conditions of the Agreement. All rights not expressly granted to Customer are reserved by Kainos and its licensors. Customer may not publish the results of any tests it conducts to monitor the availability, performance or functionality of the Subscription Services, or use the Subscription Services for any competitive purposes. Customer agrees that its purchase of subscriptions is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Kainos with respect to future functionality or features of the Subscription Services. The Subscription Service charges paid by a Customer provide the Customer with a right to use the Subscription Services for the modules set out in the Order Form. Where additional modules are released they shall be available for Customer to subscribe to at the then current rates.

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

2.3  Additional Staff. Unless otherwise specified in the relevant Order Form, the Customer is permitted to use the Subscription Services for the number of Staff detailed in the Order Form. If at any time during the Subscription Term, the Staff in respect of which the Subscription Service is used increases by 10% or more of the number of Staff set out in the Order Form the Customer shall immediately inform Kainos. An additional subscription charge will be payable in respect of the increased number of Staff calculated pro rata to (i) the charge detailed in the Order Form, (ii) the percentage Staff increase, and (iii) the duration of the Subscription Term remaining. The term of the additional subscriptions shall be coterminous with the expiration of the Subscription Term in effect at the time that any additional Staff are added.

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

2.5  Professional Services. Kainos will provide the Professional Services under and in accordance with the terms and conditions of this Agreement. Where the Customer requires the provision of Professional Services (to include without limitation Customer requested weekend work) outside the Service Hours ('Overtime'), Kainos will, subject to availability, endeavour to accommodate the Customer's requests. Overtime will be charged (pro-rated hourly) at the applicable Hourly Rate plus ½ plus VAT (or other relevant Taxes) and expenses. Where an Order Form contemplates the potential for work outside the Service Hours, the Parties may agree the extent of such Professional Services by email between the respective managers.

3  Use of the ServiceS

3.1  Kainos Responsibilities. Kainos shall:

(i) in addition to its confidentiality obligations hereunder, not use, modify or disclose to anyone other than Authorised Persons the Customer Data;

(ii) to the extent the Customer Data comprises “personal data” within the meaning of applicable data protection laws and regulations, and in respect of which it is hereby acknowledged that Kainos is acting as data processor only: (a) process the Customer Data in accordance with this Agreement, Customer’s instructions and applicable data protection laws and regulations(b) take appropriate technical, organisational and security measures against unauthorised access to or unauthorised alteration, disclosure, destruction or loss of Customer Data, and (c) take reasonable steps to ensure that Kainos employees involved in providing the Subscription Service and the Smart SLA are aware of and are suitably trained in such technical, organisational and security measures;

(iii) maintain availability of the Subscription Service in accordance with the Smart SLA; and

(iv) in respect of the provision of Professional Services, ensure that any personnel provided to perform the Professional Services comply with all reasonable rules, regulations, orders and directions as are advised by the Customer, in relation to the Customer's premises

3.2  Customer Responsibilities. Customer:

(i) has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data and shall ensure that all instructions given by it to Kainos in respect of the Customer Data will be in compliance with applicable data protection legislation;

(ii) shall arrange access to and shall provide and procure Kainos such facilities, if any, for the performance of the Professional Services as are reasonably necessary.;

(iii) shall use reasonable endeavours to prevent unauthorised access to, or use of, the Subscription Service, and notify Kainos promptly of any such unauthorised access or use; and

(iv) shall comply with all applicable local, state, federal and foreign laws in respect of the Subscription Service and the Professional Services, including without limitation all applicable data protection laws and regulations.

(v) may enable access to the Subscription Service by Authorised Persons solely for its internal business purposes as contemplated by this Agreement and shall not:

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

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

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

(d) interfere with or disrupt the integrity or performance of the Subscription Service or the data contained therein;

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

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

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

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

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

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

3.3  Subscription Service Usage.

(i) The maximum number of test cases than may be run in any 12 month period is limited to the greater of 10,000 or 2 x times the number of Staff (the “Test Case Limit”).

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

(iii) Kainos will notify Customer when the Customer reaches approximately 90% of its Test Case Limit and the Customer shall have no responsibility to pay additional charges unless and until Kainos has notified the Customer in accordance with this section 3.3

3.4 Deletion of Data.

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

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

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

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

3.5 Publicity.

(i) Customer agrees that within three (3) months of signing the Agreement Kainos may issue a press release announcing Customer as a user of Kainos technology.