Terms of ServiceLast Updated August 13, 2022
ORIGINS TECHNOLOGY LTD.
TERMS OF SERVICE
THESE TERMS OF SERVICE (“AGREEMENT”) WILL GOVERN YOUR USE OF KAITERRA SUBSCRIPTIONS AND USE OF SOFTWARE EMBEDDED IN KAITERRA HARDWARE (BOTH DEFINED BELOW) AND IS ENTERED INTO BETWEEN ORIGINS TECHNOLOGY LTD. (“KAITERRA”) AND THE BUSINESS YOU REPRESENT (“CUSTOMER”). THIS AGREEMENT TAKES EFFECT WHEN YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU MAY SHOW YOUR AGREEMENT TO AND ACCEPTANCE OF THESE TERMS BY EITHER EXECUTING AN ORDER FORM OR STATEMENT OF WORK REFERENCING THIS AGREEMENT, CLICKING THE CHECK BOX LINKING TO THIS AGREEMENT, OR OTHERWISE ACCESSING OR USING THE SERVICES. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY AND ARE AUTHORIZED TO BIND THE CUSTOMER TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN ANY CUSTOMER ORDER FORM, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND KAITERRA WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER KAITERRA’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY WILL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.
1.1 “Kaiterra Hardware” means any device sold by Kaiterra, either directly to Customer or through an authorized reseller.
1.2 “Kaiterra Products” means, collectively, the Kaiterra Hardware and the Kaiterra Subscriptions.
1.3 “Kaiterra Subscriptions” means those subscriptions to Kaiterra services ordered by Customer from Kaiterra or through an authorized reseller.
1.4 “Embedded Software” means software and firmware running on the Kaiterra Hardware.
1.5 “Subscription Term” means the term of Customer’s Kaiterra Subscription purchased from Kaiterra under the Kaiterra Terms of Purchase or purchased through a Kaiterra reseller.
2. KAITERRA SUBSCRIPTIONS
2.1 Subscriptions. Subject to the terms and conditions of this Agreement, solely during the Subscription Term, Kaiterra grants to Customer a limited, non-exclusive, non-transferable, revocable right during the Subscription Term to access and use the Kaiterra dashboard solely in connection with Customer’s internal business operations and to use the Embedded Software solely in connection with Customer’s authorized use of the Kaiterra Hardware.
2.2 API Access. Subject to the terms and conditions of this Agreement, Kaiterra grants to Customer a limited, non-exclusive, non-transferable, revocable right during the Subscription Term to access and use the Kaiterra API materials in accordance with the related documentation provided by Kaiterra, and this Agreement, solely for the purposes of developing and operating an implementation of the Kaiterra API that permits Customer to access Customer Data and import it into other software applications. Customer must only use the Kaiterra API materials and documentation in accordance with applicable law.
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2.4 Support Policy. Kaiterra will use commercially reasonable efforts to provide Customer with the services during the Subscription Term and in accordance with the support levels set forth in the Kaiterra Support Policy.
3. TERM AND TERMINATION
3.1 Term. The term of this Agreement will start at the beginning of the Subscription Term and expire at the end of the Subscription Term, unless terminated early as provided below.
3.2 Termination for Cause. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 30 days prior written notice if the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.
3.3 No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of Kaiterra or Customer. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
3.4 Effects of Termination. In addition, the following provisions will survive any expiration or termination of this Agreement: Sections 3.3, 3.4, 4, 5.3, and 6 through 10. The termination or expiration of this Agreement will not relieve Customer of the obligation to pay any amounts that are due to Kaiterra under this Agreement.
4. PROPRIETARY RIGHTS AND NOTICES
4.1 Proprietary Rights. Kaiterra and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Kaiterra Products. Customer will not act to jeopardize, limit, or interfere in any manner with Kaiterra’s ownership of any rights with respect to the Kaiterra Products. Customer will have only those rights in or to the Kaiterra Products and documentation granted to it pursuant to this Agreement.
4.2 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, create derivative works of, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code or underlying ideas or algorithms of any portion of any Kaiterra Products; (b) remove software from equipment on which it is preloaded; (c) modify or attempt to service or repair the Kaiterra Hardware or use the Kaiterra Hardware for any purpose other than in connection with Kaiterra Subscriptions; nor (d) circumvent or disable any technological features or measures in the Kaiterra Products, including security features. Customer shall take reasonable measures to prevent the Kaiterra Products from being stolen or accessed without authorization and to prevent third parties from carrying out the restricted activities set forth in this Section 4.2.
4.3 Customer Data. Customer will own all right, title, and interest in and to any data collected by Kaiterra Hardware used by Customer, including any such data processed in connection with Kaiterra Subscriptions (“Customer Data”). Customer hereby grants to Kaiterra a nonexclusive, worldwide, royalty-free, fully paid right and license to the Customer Data for the Subscription Term of any Kaiterra Subscriptions to the extent necessary for Kaiterra to provide the services in connection with the Kaiterra Subscriptions. Customer hereby grants to Kaiterra a nonexclusive, worldwide, perpetual, royalty-free, fully paid right and license to the Customer Data (i) for Kaiterra’s internal use only for research and development purposes and to improve Kaiterra’s products and services, and (ii) in aggregate, anonymized format, so long as Kaiterra does not disclose Customer as the source of the data. The right to use such Customer Data shall survive the termination of this Agreement, unless legally prohibited or Customer requests in writing upon termination that such use be limited to non-personally-identifiable data. Customer may export Customer Data at any time during the term of this Agreement through the export features in the Kaiterra dashboard or via the Kaiterra API. Customer acknowledges that some information may not be exportable via the Kaiterra dashboard or the API. If this Agreement terminates or expires and Customer does not renew, Customer Data may be immediately deleted.
4.4 Proprietary Rights Notices. Customer and its employees and agents will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the Kaiterra Products or related documentation delivered by Kaiterra.
4.5 Third Party Copyright Notices. The Kaiterra Products include third-party code licensed to Kaiterra for use and redistribution under open-source licenses (“Third Party Software”). The terms of certain open-source licenses may be applicable to Customer’s use of the Kaiterra Products, as set forth in the applicable open-source license. A list of disclosures and disclaimers in connection with Kaiterra’s incorporation of certain open-source licensed software into the Kaiterra Products is provided upon request.
5. WARRANTY; WARRANTY DISCLAIMER
5.1 Warranty. Kaiterra stands behind its Hardware Products. Kaiterra warrants that the Kaiterra Hardware shall be and shall remain free from defects in design, material and workmanship for a period ending five (5) years from the date of shipment if Customer maintains an active subscription to the Kaiterra Subscriptions during this period (the “Warranty Period”). If Customer’s subscription to the Kaiterra Subscriptions terminates earlier, then the Warranty Period will also terminate as of the same date. This warranty does not cover defects or malfunction caused by neglect, misuse, abuse, vandalism or accident; installation or use in an improper environment; or failure to follow installation, maintenance or operating instructions. Also, this warranty will not apply to damage caused by unauthorized alteration, modification or repair of the Kaiterra Hardware. This warranty applies only to the original purchaser and is non-transferable.
5.2 Warranty Remedies. If during the Warranty Period any Kaiterra Hardware fails, is nonoperational, or is otherwise found faulty due to a breach of this warranty, Customer may submit a request to Kaiterra for repair or replacement Kaiterra Hardware, which must be received before the end of the Warranty Period. Kaiterra will evaluate any such request, and if Kaiterra determines in its sole discretion that the Kaiterra Hardware is faulty due to a breach of this warranty, Kaiterra will in its sole discretion choose to replace or repair the Kaiterra Hardware. Customer will return any faulty Kaiterra Hardware to Kaiterra upon Kaiterra’s request, but in no event later than 30 days after receipt of replacement Kaiterra Hardware. Replacement of the Kaiterra Hardware is Customer’s sole remedy, and Kaiterra’s sole liability, for any breach of this warranty.
Kaiterra Hardware must be returned in original packaging, including accessories and other items included with the purchase. At Kaiterra’s sole discretion, products that have missing parts will not be approved for repair or replacement. If the Product is not sent back in its original packaging, the sender accepts all liability for damage claims and may be charged by Kaiterra for repairs.
All products that require repair must be accompanied by a shipping mark or label authorized by Kaiterra. The label must be clearly listed on the outside of the box, otherwise the shipment will be refused and immediately returned to the sender. Kaiterra is not responsible for the loss of products in transit.
5.3 Warranty Disclaimer. OTHER THAN AS SET FORTH IN THIS AGREEMENT, KAITERRA MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. KAITERRA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. KAITERRA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE KAITERRA PRODUCTS OR AGAINST INFRINGEMENT. KAITERRA DOES NOT WARRANT THAT THE KAITERRA PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE KAITERRA PRODUCTS WILL BE SECURE OR UNINTERRUPTED. KAITERRA EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED ON A CUSTOMER’S USE OF THE KAITERRA PRODUCTS. KAITERRA PRODUCTS ARE NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE KAITERRA PRODUCTS COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. KAITERRA RECOMMENDS AGAINST, AND DISCLAIMS ANY LIABILITY FOR, USE OF THE KAITERRA PRODUCTS IN ANY SUCH MANNER.
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7. CUSTOMER INDEMNIFICATION
7.1 Defense of Claims. Customer will defend Kaiterra and its affiliates and their employees, directors, agents, and representatives (“Kaiterra Indemnified Parties”) from any actual or threatened third party claim arising out of or based upon Customer’s performance or failure to perform under this Agreement, its negligence or willful misconduct, or its breach of this Agreement. The Kaiterra Indemnified Parties will: (a) give Customer prompt written notice of the claim; (b) grant Customer full and complete control over the defense and settlement of the claim; and (c) assist Customer with the defense and settlement of the claim as Customer may reasonably request.
7.2 Indemnification. Customer will indemnify each of the Kaiterra Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 7.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and, (c) if any proceeding arising under Section 7.1 is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims.
8. CONFIDENTIAL INFORMATION
8.1 Confidential Information. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to a party during the term of this Agreement. The Kaiterra Products and related information will be the Confidential Information of Kaiterra. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
8.2 Nondisclosure. During and after the term of this Agreement, each party will: (a) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 8; and (b) protect the other party’s Confidential Information from unauthorized disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. Kaiterra will process personal data according to the Kaiterra Data Processing Agreement.
8.3 Confidentiality of Agreement. Neither party to this Agreement will disclose the terms of this Agreement to any third party without the consent of the other party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each party may disclose the terms of this Agreement (a) in connection with the requirements of a public offering or securities filing; (b) in confidence, to accountants, banks, and financing sources and their advisors; (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
8.4 Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
8.5 Existing Obligations. The obligations in this Section 8 are in addition to, and supplement, each party’s obligations of confidentiality under any nondisclosure or other agreement between the parties.
9. LIMITATION OF LIABILITY
9.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, KAITERRA WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF KAITERRA IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL KAITERRA’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AMOUNTS CUSTOMER HAS PAID TO KAITERRA HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE DAMAGE, OR IF CUSTOMER HAS NOT HAD ANY PAYMENT OBLIGATIONS TO KAITERRA (FOR EXAMPLE THROUGH A FREE TRIAL), ONE HUNDRED DOLLARS ($100).
9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN KAITERRA’S PRICING AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
10.1 Marketing. Customer agrees Kaiterra may publicly use Customer’s logo and name to identify Customer as a customer of Kaiterra.
10.2 Export Restrictions. Customer will not resell or otherwise distribute the Kaiterra Products in any foreign territory where applicable laws would not provide the protections to Kaiterra and the Kaiterra Products intended under this Agreement, or where there is a significant risk that the Kaiterra Products would fall into the public domain. Customer will not directly or indirectly import, export, or re-export the Kaiterra Products outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory.
10.3 Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.
10.4 Assignability. Customer may not assign its right, duties, or obligations under this Agreement without Kaiterra’s prior written consent. As used in this Section 10.4, “assign” includes undergoing any direct or indirect change in control, whether via a merger, acquisition, or sale of all or substantially all assets of Customer. If consent is given, this Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
10.6 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed. Kaiterra may also be contacted at the email address listed in the Order Form. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
10.7 Force Majeure. Kaiterra will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Kaiterra’s reasonable control, so long as Kaiterra uses commercially reasonable efforts to avoid or remove such causes of non-performance.
10.9 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of Hong Kong without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
10.10 Arbitration. The parties agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration.
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Hong Kong International Arbitration Centre (HKIAC) under the HKIAC Administered Arbitration Rules in force when the notice of arbitration is submitted. The seat of arbitration shall be Hong Kong. The language used in arbitration, including the language of the proceedings, the language of the decision, and the reasons supporting it, shall be English. All awards shall be final and binding on the Parties and enforceable in any court of competent jurisdiction. The Parties shall treat the award as Confidential Information.
10.11 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
10.12 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to Customer under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
10.13 Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
10.14 Entire Agreement. This Agreement, together with the Kaiterra Terms of Purchase (if applicable) and Kaiterra Data Processing Agreement, is the final and complete expression of the agreement between these parties regarding the Kaiterra Products. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of Kaiterra has any authority to bind Kaiterra with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. If Customer acquired the Kaiterra Products from a Kaiterra reseller, then this Agreement is not exclusive of any rights Customer obtains under its agreement with the reseller; however, if there is any conflict between the provisions of this Agreement and the reseller agreement, then the provisions of this Agreement prevail, and if the reseller has granted Customer any rights that Kaiterra does not also directly grant to Customer in this Agreement, or that conflict with this Agreement, then Customer’s sole recourse with respect to such rights is against the reseller.
10.15 Updates to this Agreement. From time to time, Kaiterra may change, modify, add, or remove portions of this Agreement (each an “Update”), and reserves the right to do so in its sole discretion. If Kaiterra Updates this Agreement, it will make the Updated Agreement available here (https://kaiterra.com/legal/terms-of-service), and the Updated Agreement will indicate the date of the latest revision. Customer is encouraged to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter Customer’s rights or obligations hereunder, Kaiterra will make reasonable efforts to notify Customer of the Updates. For example, Kaiterra may send a message to Customer’s email address that is currently associated with its Kaiterra account or generate a pop-up or similar notification when Customer accesses its Kaiterra account for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days after they are posted, except that (i) disputes between Customer and Kaiterra will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if Customer does not agree with any changes to this Agreement, Customer may terminate this Agreement as set forth above. Customer’s continued access to or use of the Services after an Updated Agreement has become effective indicates that Customer has read, understood and agreed to the current version of this Agreement.