Kitecyber Terms for the SaaS Offering
Kitecyber Terms for the SaaS Offering
1. DEFINITIONS
1.1 “Availability Commitment” is defined in Section 5.1, below.
1.2 “Cloud Integration” means a system of tools and technologies that connects Components for the exchange of data and processes within the SaaS Offering.
1.3 “Credit” means 2% of Monthly Subscription Fees for each 1% below the Availability Commitment, not to exceed 100% of the Monthly Subscription Fees.
1.4 “Customer Data” means information, data, and other content, in any form or medium, that is collected, uploaded, downloaded, or otherwise received, directly or indirectly, from you or a User by or through the SaaS Offering.
1.5 “Downtime” means Total Minutes in the Month during which the SaaS Offering is not available, except for Excluded Downtimes.
1.6 “Excluded Downtime” means the Total Minutes in the Month attributable to (i) Planned Maintenance Downtime for which you have been notified in advance; (ii) unavailability caused by factors outside of Kitecyber’s control, such as unpredictable or unforeseeable events that could not have been avoided even if reasonable care had been exercised; (iii) unavailability caused by failure of your infrastructure or connectivity, computer and telecommunications failures; (iv) unavailability caused by your or a third party’s hardware or software; (v) unavailability caused by acts or omissions by you, your employees, agents, or contractors, or anyone gaining access to the SaaS Offering by means of your passwords or equipment; (vi) your failure to modify your use of the SaaS Offering after being advised to do so; and/or (vii) degradation in any integrations to the SaaS Offering.
1.7 “Maintenance Release” means an update, upgrade, patch, bug fix and new release or version of the SaaS Offering. 1.8 “Month” means a calendar month.
1.9 “Monthly Subscription Fees” means one-twelfth (1/12) of the annual subscription fees paid or payable for the applicable SaaS Offering (i.e., the particular SaaS Offering that did not meet the Availability Commitment).
1.10 “Monthly Uptime Percentage” is calculated and defined as ((Total Minutes in the Month – Excluded Downtime – Downtime)/(Total Minutes in the Month – Excluded Downtime))*100.
1.11 “Planned Maintenance Downtime” means the time during which the SaaS Offering is unavailable so that Kitecyber or its hosting provider can perform maintenance and upgrades.
1.12 “Total Minutes in the Month” means the total minutes in an applicable Month, which is calculated by multiplying 60 (number of minutes in an hour) by 24 (number of hours in a day) and then multiplying that total by the number of days during the applicable Month.
2. ACCESS
Kitecyber hereby grants to you a non-exclusive, non-transferable right to access and use the features and functions of the applicable SaaS Offering consistent with the subscription you purchased and paid for. If you exceed the usage limits of the subscription purchased, you will incur additional fees for such excess usage. Unless otherwise agreed in writing, you may not decrease your subscription to the SaaS Offering within any Initial Term or Renewal Term. you will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Offering, and notify Kitecyber promptly of any such unauthorized use known to you. If you provide access to the SaaS Offering to any third party, then you agree Kitecyber shall not be responsible or have any liability for a data breach resulting from such third party access.
3. CUSTOMER DATA
3.1 Ownership. As between you and Kitecyber, you retain all right, title and interest in and to the Customer Data. Kitecyber acknowledges that it neither owns nor acquires any additional rights in and to the Customer Data not expressly granted by the Agreement.
3.2 Responsibility for Customer Data and Security. you are responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other access protocols required in order to access the SaaS Offering and are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. you shall procure all rights and privileges to obtain and transfer Customer Data to Kitecyber under the terms of the Agreement. your provision of such Customer Data to Kitecyber shall be in compliance with all applicable laws and regulations, including but not limited to all privacy laws and regulations. you may not, and shall ensure your Users do not, submit the following types of information to the SaaS Offering: (i) government identification numbers or financial account numbers associated with individual persons (e.g. U.S. Social Security numbers, national insurance numbers, driver’s license numbers, or personal credit card or banking account numbers), (ii) medical records or health care claim information associated with individuals, including claims for payment or reimbursement for any type of medical care for an individual, (iii) information regulated under the International Traffic in Arms Regulations, (iv) without the express written consent of Kitecyber, technical data restricted under applicable laws, and (v) data designated as “sensitive” or “special category” or the like requiring extra protective measures under the applicable data protection laws and regulations. you agree that the use of any such Customer Data is at your discretion and incidental to the use of the SaaS Offering. you represent and warrant that you own or otherwise have sufficient rights or consents to grant Kitecyber access to and use of the Customer Data in accordance with the terms of the Agreement.
3.3 License. you hereby grant to Kitecyber a royalty-free, fully-paid, non-exclusive, non-transferable, worldwide right and license to use Customer Data (i) during the Initial Term and any applicable Renewal Term of the Agreement (collectively, the “Term”), for the limited purpose of performing Kitecyber’s obligations under the Agreement, and (ii) during and after the Term, as provided in Section 3.4 below.
3.4. Data Analysis. Notwithstanding anything to the contrary, you agree that Kitecyber may use Customer Data to create analysis utilizing Customer Data and information derived from your use of the SaaS Offering, as set forth below (“Analyses”). Analyses will de-identify and aggregate information and will be owned by Kitecyber. Analyses may be used for the following purposes: (i) product improvement (including product features and functionality, workflows and user interfaces) and development of new Kitecyber products and services, (ii) improving resource allocation and support, (iii) internal demand planning, (iv) training and developing machine learning algorithms, (v) improving product performance, (vi) verification of security and data integrity, (vii) identification of industry trends and developments, (viii) developing and recommending insights to you and other customers; (viii) create anonymous profiles; (ix) creation of indices and anonymous benchmarking; and/or (x) for generally improving Kitecyber’s products and services.
3.5 Location. During the Term, you may request that all Customer Data and your instance of the SaaS Offering be moved to a different hosting location offered by Kitecyber for valid business purposes. Any such migration shall be accompanied by a fee of no less than twenty-five percent (25%) of the SaaS Offering for the Term.
4. CUSTOMER RESPONSIBILITIES.
5. AVAILABILITY AND SERVICE LEVEL CREDITS.
5.1 Availability. Monthly Uptime Percentage will be at least 99.9% (the “Availability Commitment”).
5.2 Reporting. If you believe Kitecyber has not met the Monthly Uptime Percentage, you shall notify Kitecyber upon discovery of the unavailability so that Kitecyber can confirm and determine the cause of the unavailability. As part of the notification, you shall provide (i) your name and contact information; (ii) beginning time of the outage; (iii) a description of the characteristics of the outage; (iv) end user location; (v) URL(s) affected; (vi) the internet service provider used to access the SaaS Offering; (vii) network traceroutes; and (viii) any attempts you made to resolve the outage.
5.3 Planned Maintenance Downtime. Planned Maintenance Downtime shall generally not exceed four (4) hours per calendar quarter, except as set forth in Section 11. However, in the exceptional case that Planned Maintenance Downtime will exceed four (4) hours per calendar quarter, Kitecyber shall give you advance notice by e-mail or text message to the e-mail address or phone number provided by you. Kitecyber will schedule Planned Maintenance Downtime between 8:00 pm to midnight of the local time zone in which the data centers are located, as much as practicable.
5.4 Service Credits. If Kitecyber fails to meet the Availability Commitment for a particular Month, your sole and exclusive remedy shall be to claim a Credit, which may only (i) be used to extend the SaaS Offering at the end of the applicable subscription term, or (ii) be applied to a future invoice relating to the SaaS Offering that did not meet the Availability Commitment Claims for a Credit must be made in good faith and through a documented submission of a support case within five (5) business days after the end of the relevant Month in which Kitecyber did not meet the Availability Commitment for the SaaS Offering. Within thirty (30) days of your claim for a Credit, Kitecyber will either deny the request or issue a credit memo acknowledging the credit or extension. The terms of this section relating to Credits constitute a genuine pre-estimate of the loss or damage that you might suffer as a result of any failure to meet the Availability SLA for the SaaS Offering and are adequate compensation for any loss or damage caused by any failure to meet the Availability SLA for the SaaS Offering. Availability will be calculated using Kitecyber’s system logs and other records.
5.5 Termination. If the Monthly Uptime Percentage of the SaaS Offering is less than 98.0% for three (3) consecutive months, you may terminate the SaaS Offering and receive a pro rata refund of any prepaid but unused SaaS Offering fee.
