Terms of Service

Acceptance

Xebia IT Architects provides Kodo Kojo services (the "Kodo Kojo Services") to you ("you" and "your" or "Subscriber") (Kodo Kojo and Subscriber each a "Party" and collectively "Parties") subject to the following Terms of Service. In order to use the Kodo Kojo Services, you must first agree to these Terms of Service. You may not use the Kodo Kojo Services if you do not accept these Terms of Service. You can accept these Terms of Service by (i) clicking "I ACCEPT" where this option is made available to you in the user interface; or (ii) by accessing and using the Hosting Service, in which case you understand and agree that Kodo Kojo will treat your use of the Kodo Kojo Services as acceptance of these Terms of Service from that point onwards.


Changes to these Terms of Service

Xebia IT Architects may make changes to these Terms of Service from time to time. When these changes are made, Xebia IT Architects will make a revised version of these Terms of Service available at kodokojo.io/terms-of-service.html. You understand and agree that if you use the Kodo Kojo Services after the date on which these Terms of Service have changed, Xebia IT Architects will treat your continued use as acceptance of the revised Terms of Service.


Persons Not Eligible to Use the Kodo Kojo Services

You may not use the Kodo Kojo Services and may not accept these Terms of Service if (i) you are not of legal age to form a binding contract with Xebia IT Architects, or (ii) you are a person barred from receiving the Kodo Kojo Services under the laws of France or other countries including the country in which you are resident or from which you use the Kodo Kojo Services.


Copy for Records

Before you continue, you should print or save a local copy of these Terms of Service for your record.


Definitions

"Hosting Platform" means Kodo Kojo's data hosting platform currently known as "Kodo Kojo" which includes Kodo Kojo software and certain third-party software, and any updated versions of such platform made available by Kodo Kojo.

"Kodo Kojo Services" means the Kodo Kojo Services for Subscriber that Kodo Kojo provides through the Hosting Platform.

"Primary Data" means any and all information that Kodo Kojo receives from Subscriber and hosts in connection with these Terms of Service as an application service provider in whatever form or medium, in connection with the Kodo Kojo Services.

"Derived Data" means all calculations derived from the Primary Data and stored on the Hosting Platform.

"Subscriber Data" means the Primary Data and the Derived Data, collectively.

"Service Level" means the standard set forth below by which Kodo Kojo measures the level of service it provides in these Terms of Service.


License; Limits On Use

Limited License

Subject to the terms and conditions of these Terms of Service, Xebia IT Architects hereby grants to Subscriber a personal, non-exclusive, non-transferable, and non-sublicensable license for the Term (as defined below) to access and use the Hosting Platform.

Limits on Use of Hosting Platform

Subscriber shall not and shall not assist others to:


Sign-In Name; Password; Unique Identifiers

During the registration process, you will be asked to create an account, which includes a unique sign-in name ("Sign-In Name"), password ("Password"), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future ("Unique Identifiers"). When creating your account, you must provide true, accurate, current, and complete information. Each Sign-In Name and corresponding Password can be used by only one subscriber. You are solely responsible for the confidentiality and use of your Sign-In Name, Password, and Unique Identifiers, as well as for any use or misuse of the Kodo Kojo Services using one or more of them. You will promptly inform Kodo Kojo of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. Xebia IT Architects reserves the right to delete or change your Password, Sign-In Name, or Unique Identifier at any time and for any reason. Xebia IT Architects will not be liable for any loss or damage caused by any unauthorized use of your account.


Scheduled Maintenance

Kodo Kojo will schedule maintenance to the Hosting Platform during non-peak usage hours. Scheduled maintenance may result in the Kodo Kojo Services being unavailable.

Emergency Maintenance

Kodo Kojo may temporarily limit or suspend the availability of all or part of the Hosting Platform if it is necessary for reasons of public safety, security, maintenance of the Kodo Kojo Services, interoperability of services, data protection, or to perform work that is necessary for operational or technical reasons.


Confidential Information

For purposes of these Terms of Service, Confidential Information shall mean any confidential or other proprietary information that is disclosed by or on behalf of a Party (the "Disclosing Party") to the other Party (the "Receiving Party"), whether disclosed orally or in writing, whether disclosed before or after the Effective Date, and whether or not marked or otherwise designated as confidential, including, without limitation, the Subscriber Data, the Hosting Platform, information relating to the Disclosing Party's customers, potential customers, suppliers, financial and business information, technological information, specifications, business and product plans, the terms and conditions of these Terms of Service, and any other non-public information disclosed. Notwithstanding the foregoing, Confidential Information does not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the Receiving Party; (ii) is publicly disclosed by the Receiving Party with the prior, written approval of the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or access to Confidential Information; or (iv) is intentionally disclosed by the Disclosing Party to a third party without restriction on disclosure. Each Party agrees: (i) not to disclose, or permit any third party or entity access to, the Disclosing Party's Confidential Information (or any portion thereof) without prior written permission of the Disclosing Party; (ii) not to utilize, except as permitted under these Terms of Service or as required to perform any obligations under these Terms of Service, the Disclosing Party's Confidential Information (or any portion thereof); (iii) to ensure that its employees shall only be given access to the Disclosing Party's Confidential Information to the extent necessary for such employees to perform their duties under these Terms of Service; and (iv) to ensure that any of its employees who receive access to the Disclosing Party's Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or disclosing such Confidential Information, except as required to perform any obligations under these Terms of Service. In the event the Receiving Party becomes or may become legally compelled to disclose any of the Disclosing Party's Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of these Terms of Service. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.


Term And Termination

Term

The term of the Kodo Kojo Services (the "Term") will commence upon your acceptance of these Terms of Service and will continue for the term specified in the applicable Order Form unless terminated as set forth in the following section.

Termination

Xebia IT Architects reserves the right, in its sole discretion, to restrict, suspend, or terminate these Terms of Service and your access to all or any part of the Kodo Kojo Services, at any time and for any reason (or no reason) without liability.

This agreement shall remain in effect for the Initial Term set forth on the Order Form and shall automatically renew for additional one year terms. Subscriber may terminate service at any time. Upon termination, Subscriber will liable for all charges incurred before termination.

Effect of Termination

At the end of the Term and upon your written request (which may be made by email), Xebia IT Architects shall: (i) archive and export to Subscriber in an open format all Primary Data from the Hosting Platform; and (ii) to the extent technically feasible, use commercially reasonable efforts to export to Subscriber any Derived Data in an open format; provided, however, that Subscriber shall pay for any bandwidth costs associated with any such archiving and/or exporting listed under subparagraphs of the "Subscriber Warranties" section.

Survival

The following provisions shall survive any termination of the Kodo Kojo Services: "Ownership"; "Effect of Termination"; "Representations and Warranties"; "Correction of Errors; Limitation of Liability"; "Indemnification"; "Miscellaneous Provisions"; and this "Survival" section.


Representations And Warranties

Power and Authority

Each Party represents and warrants that it has the full right, power and authority to enter into these Terms of Service and to discharge its obligations hereunder.

Subscriber Warranties

Subscriber represents, warrants, and covenants that:

No Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE KODO KOJO SERVICES IS AT YOUR SOLE RISK AND THAT THE KODO KOJO SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND THAT THE OPERATION OF THE HOSTING PLATFORM MAY NOT BE UNINTERRUPTED OR ERROR-FREE. XEBIA IT ARCHITECTS MAKES NO WARRANTIES IN CONNECTION WITH THE KODO KOJO SERVICES OR OTHERWISE WITH RESPECT TO THESE TERMS OF SERVICE AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT XEBIA IT ARCHITECTS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.


Correction Of Errors; Limitation Of Liability

Correction of Errors

In the event of a material error or omission by Xebia IT Architects related to the provision of the Kodo Kojo Services or cessation in the provision of the Kodo Kojo Services, Subscriber's sole remedy shall be to have Xebia IT Architects use reasonable efforts to correct such error, omission, or cessation. Subscriber shall advise Xebia IT Architects in writing of such error, omission, or cessation reasonably promptly after discovery thereof by Subscriber.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT XEBIA IT ARCHITECTS, ITS SUBSIDIARIES, AFFILIATES AND PARENT, SHALL NOT BE LIABLE TO YOU (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM YOU) FOR:

IN NO EVENT SHALL XEBIA IT ARCHITECTS'S LIABILITY ARISING FROM OR RELATING TO THE KODO KOJO SERVICES OR OTHERWISE ARISING UNDER THESE TERMS OF SERVICE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, INDEMNITY OR OTHERWISE), EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID TO XEBIA IT ARCHITECTS BY SUBSCRIBER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PROCEEDING THE DATE THE CLAIM AROSE.

Effect of Applicable Law

TO THE EXTENT THE FOREGOING EXCLUSIONS OF LIABILITY ARE NOT PERMITTED UNDER APPLICABLE LAW, XEBIA IT ARCHITECTS 'S LIABILITY IN SUCH CASE WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.


Indemnification

Subscriber will defend, indemnify, and hold harmless Xebia IT Architects and its affiliates, and each of their officers, directors, shareholders and employees from any and all claims, liabilities, costs and expenses (including reasonable attorney's fees and expert and consulting fees) in connection with (i) any third-party claims that any information and/or data Subscriber provides to Xebia IT Architects for hosting infringes, misappropriates, or violates any third-party patents, copyrights, trade secrets, trademark, contractual, or other intellectual property or proprietary rights, and (ii) any claims arising from or relating to Subscriber's breach or alleged breach of its representations and warranties hereunder.


Miscellaneous Provisions

Choice of Law

These Terms of Service, and any disputes directly or indirectly arising from or relating to these Terms of Service, will be governed by and construed in accordance with the laws of France, without regard to principles of conflicts of law.

No Waiver

The rights and remedies of Xebia IT Architects are cumulative and not alternative. No waiver of any rights is to be charged against Xebia IT Architects unless such waiver is in writing signed by an authorized representative of Xebia IT Architects. Neither the failure nor any delay by Xebia IT Architects in exercising any right, power, or privilege under these Terms of Service will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.

Severability

If any provision of these Terms of Service is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms of Service will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties' intent.

Force Majeure

Nonperformance of either Party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other non-economic reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party (collectively, a "Force Majeure Event").

Entire Agreement

These Terms of Service (including the Schedules hereto) contain the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither Party has relied upon any representation, express or implied, not contained in these Terms of Service.


Last updated: 19th of October 2016