Effective as of March 01, 2022
(B) If Customer does not accept these terms, then the Customer shall not register for use, or use the Churn360 service. Customer agrees to provide Kovai Limited with complete and accurate information when Customer register for the Services, and to keep such information up to date.
(C) The Customer’s attention is drawn in particular to clause 1.5 (which restricts usage of the service to one account within a single entity), 6.2 (which sets out some items for which Kovai Limited does not provide any guarantee) and clauses 11.2 and 11.4 (which impose important limitations on Kovai Limited’s liability to the Customer).
1.1 Subject to the Customer paying for the Permitted Usage in accordance with clause 2 and clause 8.1, the restrictions set out in this Agreement, Kovai Limited hereby grants to the Customer a non-exclusive, non-transferable right to use the Services strictly in accordance with the Permitted Usage during the Subscription Term solely for the Customer’s internal business operations.
1.2 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
1.3 The Customer shall not:(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
1.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Product Description and, in the event of any such unauthorised access or use, promptly notify Kovai Limited. Notwithstanding the foregoing, Customer may provide access to its customers or prospective customers.
1.5 The rights provided under this Agreement are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer. Only one subscription to the Services may be activated by any company, person or other entity. Duplicate subscriptions for any company, person or entity shall be considered a material breach of this Agreement, not capable of remedy, for the purposes of clause 12.2(b) below.
1.6 The Customer undertakes to ensure that all Users comply with this Agreement and acknowledge that Customer shall remain responsible and liable for the acts or omissions of all Users to the same extent as if Customer had carried out such acts or omissions itself.
1.7 Responsibility for the security of any usernames and passwords issued (including those of any Users) rests with Customer. If Customer has reason to believe that their User account details have been obtained by another without consent, the Customer should contact Kovai Limited immediately to suspend the account.
1.8 Customer can access Churn360 settings screen for setting up other users and role/permissions. When a user is added to the portal, an email verification will be sent to the user and will give them an opportunity to set up the password and verify the access to the portal.
2.1 Subject to clause 2.2, the Customer may, from time to time during any Subscription Term, purchase additional Permitted Usage in excess of that initially purchased and Kovai Limited shall grant access to the Services for such additional Permitted Usage in accordance with the provisions of this Agreement.
2.2 If the Customer wishes to purchase additional Permitted Usage, the Customer may do so by means of the Settings Payment Screen in the Kovai Limited Churn360 portal (app.Churn360.com/Settings/Payment) at the then-current rates. If additional Permitted Usage is charged to or purchased by the Customer part-way through the Initial Subscription Term or any Renewal Period (as applicable), resulting additional Subscription fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable). If any features are required to be enabled from higher tiers, then an email to support[email protected] can be sent and the feature will be enabled and charges will be prorated and applied in the upcoming renewal invoices.
2.3 In the event that Customer wishes to decrease the amount of Permitted Usage, the Customer may do so by means of the Payment Screen. If decreased Permitted Usage is selected by the Customer, the Customer must select those resources that he or she wishes to no longer be supported, in advance of the end of the Initial Subscription Term or then current Renewal Period (as applicable). The revised Permitted Usage and resulting decreased Subscription Fees shall apply from the commencement of the following Renewal Period.
3.1 Kovai Limited shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this Agreement.
3.2 Kovai Limited shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
provided that Kovai Limited has used reasonable endeavours to give the Customer notice in advance.3.3 Kovai Limited will, as part of the Services and at no additional cost to the Customer, provide the Customer with Kovai Limited standard customer support services during Normal Business Hours in accordance with Kovai Limited Support Services Policy in effect at the time that the Services are provided. Kovai Limited may amend the Support Services Policy in its sole and absolute discretion from time to time. 3.4 From time-to-time Kovai Limited may offer Customer certain additional Services as free beta trials to gain a view on their maturity and suitability for adding to the Kovai Limited suite of services. Customers agree that Kovai Limited has the sole authority and discretion to determine the period for testing and evaluation of these beta services and reserves the right to discontinue fully or partially, at any time and from time to time, temporarily or permanently, any of them with or without notice to Customer. Customer agrees that Kovai Limited will not be liable to Customer or to any third party for any harm related to, arising out of, or caused by the modification, suspension, or discontinuance of any of the beta services for any reason. Once the beta trial period is over, Kovai Limited will notify Customer and Customer will either commence payment for the relevant Service or discontinue use.
3.5 Kovai Limited may suspend Customer’s account or any User account or temporarily disable access to whole or part of the Service in the event of any of the following:
3.6 The Customer may terminate Customer Account or any User account by means of the Account Details or User Management Screen.
3.7 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
3.8 The Customer hereby grants to Kovai Limited a royalty-free, non-exclusive, irrevocable, right to gather and process Customer data solely for the purposes of providing the Services an warrants and undertakes that Customer has all necessary rights and permissions to authorize Kovai Limited to do so.
4.1 Subject to the terms of this Agreement, the Services may be utilised on a Free Basis in respect of limitations defined in the free tier. Without prejudice to clause 1.5 above, only one Free Basis subscription is permitted in respect of any company, person or entity.
4.2 In the event that the Service is provided on a Free Basis, Kovai Limited may terminate such free use at any time on not less than one week’s written notice and require payment of Subscription Fees as a condition of further use of the Service.
6.1 Kovai Limited undertakes that the Services will be performed substantially in accordance with the Product Description and with reasonable skill and care, and that it has used all reasonable endeavours to ensure that the application is free from Viruses.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Kovai Limited instructions, or modification or alteration of the Services by any party other than Kovai Limited or Kovai Limited duly authorised contractors or agents. If the Services do not conform to the undertaking in clause 6.1, Kovai Limited will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, Kovai Limited:
6.3 Customer acknowledges that the Service has not been developed to meet Customer’s individual requirements, and that it is therefore Customer’s responsibility to ensure that the facilities and functions of the Services meet Customer’s requirements.
6.4 Customer further acknowledges that it is not possible to test the Service in advance in every possible operating combination and environment and it is not possible to produce a Service known to be error free in all circumstances.
6.5 Kovai Limited makes no warranty or representation that the Services will be of satisfactory quality, that they will be fit for a particular purpose, that they will not infringe the rights of third parties, that they will be compatible with all systems, or that they will be secure or free of Viruses (despite Kovai Limited efforts to deploy industry standard security measures).
6.6 The Customer acknowledges that no data transmission over the Internet can be guaranteed to be secure. Kovai Limited is not responsible for any interception or interruption of any communications through the Internet or networks or systems outside Kovai Limited control.
6.7 Nothing in this Agreement shall prevent Kovai Limited from entering into similar agreements with third parties, or from independently developing, using, selling or licensing Product Description, products and/or services which are similar to those provided under this Agreement.
The Customer shall:(a) provide Kovai Limited with:
in order to provide the Services;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Kovai Limited may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Services and the Product Description are used in accordance with the terms and conditions of this Agreement and shall be responsible for any User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Kovai Limited, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Kovai Limited from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Kovai Limited data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8.1 As a condition of its use of and access to the Services, the Customer shall pay the Subscription Fees to Kovai Limited for the Permitted Usage in accordance with this clause 8 and the Registration Form.
8.2 The Customer shall on the Effective Date provide to Kovai Limited valid, up-to-date and complete credit card details or approved purchase order information acceptable to Kovai Limited and any other relevant valid, up-to-date and complete contact and billing (credit card) details. The Customer hereby authorises Kovai Limited to bill such credit card:
8.3 All amounts and fees stated or referred to in this Agreement:
8.4 Kovai Limited shall be entitled to increase the Subscription Fees, or the fees payable in respect of the additional Permitted Usage purchased pursuant to clause 2.2, at the start of each Renewal Period upon 30 days’ prior notice to the Customer and the Subscription Fees shall be deemed to have been amended accordingly.
8.5 For paying accounts, the Service is billed annually or monthly in advance. Payments are non-refundable, and no refunds or credits will be given for any partial use within any subscription period.
8.6 Kovai Limited reserves the right to suspend Customer’s access to the Service immediately if Customer fails to provide Kovai Limited with current valid credit card details that enable Kovai Limited to charge the full amount of any outstanding fees and charges. Kovai Limited will notify the Customer by means of the Settings Email or Payment Screen in advance of any card details no longer being valid. If no payment is made to clear the full amount of any outstanding fees and charges within 7 days of their becoming due, Customer’s account and all associated data will be deleted and Kovai Limited will be entitled to suspend Customer’s access to the Services for up to 45 days, and/or terminate this Agreement without liability.
9.1 The Customer acknowledges and agrees that Kovai Limited and/or its licensors own all intellectual property rights in the Services and the Product Description. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Product Description.
9.2 Without limitation on clause 9.1 above, all trade marks trademarks, logos and service marks (the Trade Marks) which appear on Services are Kovai Limited registered and unregistered Trade Marks or are licensed for use by Kovai Limited by the owners of those Trade Marks.
9.3 Other trademarks are proprietary marks and are registered to their respective owners.
9.4 Nothing contained in the Services should be construed as granting any licence or right to use any trademarks displayed on the Service without Kovai Limited written permission or such other trademark owner.
10.1 The Customer shall defend, indemnify and hold Kovai Limited harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Product Description, provided that:
10.2 Kovai Limited shall defend the Customer, its officers, directors and employees against any claim that the Services or Product Description infringes any United Kingdom patent effective as of the Effective Date, copyright, trademark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
10.3 In the defence or settlement of any claim, Kovai Limited may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such courses of action are not reasonably practicable at what it considers in its absolute discretion to be a reasonable cost, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4 In no event shall Kovai Limited, its employees, agents and sub-contractors be liable to the Customer to the extent that any alleged infringement is based on:
10.5 Clause 10.2 and clause 11.4(b) state the Customer’s sole and exclusive rights and remedies, and Kovai Limited (including Kovai Limited employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trademark, database right or right of confidentiality.
11.1 This clause 11 sets out the entire financial liability of Kovai Limited (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
11.2 Except as expressly and specifically provided in this Agreement:
11.3 Nothing in this Agreement excludes the liability of Kovai Limited:
11.4 Subject to clause 11.2 and clause 11.3:
a) Kovai Limited shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
(b) Kovai Limited total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the greater of USD7200 (seven thousand two hundred US dollars) and 100% of the total Subscription Fees paid and payable by the Customer during the 12 months immediately preceding the date on which the claim arose.
12.1 This agreement shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter this Agreement shall be automatically renewed for successive periods equivalent to the Initial Subscription Term (each a Renewal Period), unless:
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term. Customer may notify Kovai Limited of its termination of the Services in accordance with this clause 12.1 by means of email. This clause 12.1 does not apply to Free accounts which do not have a fixed Initial Subscription Term and can be terminated at any time on one week’s notice.
12.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
12.3 On termination of this Agreement for any reason:
Kovai Limited shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Kovai Limited or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
14.1 Each party (the Receiving Party) shall keep the other’s (the Disclosing Party’s) confidential information confidential. In the case of Kovai Limited as the Disclosing Party, this includes all information (of any kind and in any format and coming into Customers knowledge, possession or control in any way) relating to Kovai Limited business, finance or technology, know-how, intellectual property rights, assets, strategy, products and customers, where the information is identified as confidential at the time of disclosure or ought reasonably to be considered confidential given its nature or how it was disclosed (Confidential Information).
14.2 The Receiving Party shall not without Kovai Limited prior written consent use, disclose, copy or modify the Disclosing Party’s Confidential Information (or permit others to do so) other than as strictly necessary for it to be able to do what it is permitted and required to do under this Agreement and, where disclosure to its officers, employees, agents, professional advisers and contractors is necessary, Receiving Party shall ensure such persons are made aware of and agree in writing to observe these same obligations.
14.3 Confidential Information shall not include:
14.4 Each party may disclose any confidential information required by law, any court, any governmental, regulatory or supervisory authority (including any regulated investment exchange) or any other authority of competent jurisdiction.
14.5 Customer hereby grants Kovai Limited a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub licensable right and license to use any comments, suggestions, proposals or recommendations (“Feedback”) made by or on behalf of Customer in respect of the Services, and any such Feedback shall not be considered the Customer’s Confidential Information.
14.6 Subject to clause 25.11 above, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
17.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
17.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18.1 This Agreement constitutes the entire and exclusive agreement between Kovai Limited and Customer with respect to the Services and supersede and replace any other agreements, terms and conditions applicable to the Services. Purchase orders placed by Customer shall be for the sole purpose of specifying the Services that Customer wishes to purchase or has purchased. Any other terms stated in any purchase order delivered to Kovai Limited by Customer shall have no effect.
18.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
19.1 The Customer shall not, without the prior written consent of Kovai Limited, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
19.2 Kovai Limited may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
This agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
23.1 In the event of any dispute arising between the parties in connection with this Agreement which cannot be settled by negotiation, the parties shall in good faith, seek to resolve that dispute through mediation under the auspices of the ADR Group (UK). The mediator shall be agreed upon within 15 days of one party requesting mediation, failing which the mediator will be appointed by the then Chairman of ADR Group. Unless otherwise agreed the parties shall share equally the costs of the mediation. If the dispute is not resolved within 30 days, or one of the parties refuses to participate in mediation, the dispute may be referred to litigation. No party may commence any court proceedings in relation to any dispute arising out of this Agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that nothing in this clause shall prevent either party seeking a preliminary injunction or other judicial relief at any time if in its judgement such action is necessary to prevent irreparable damage.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
25.1 The definitions and rules of interpretation in this clause apply in this Agreement.
25.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
25.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
25.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
25.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
25.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
25.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
25.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
25.9 A reference to writing or written includes e-mail and interaction by means of the Email Notifications from Churn360.
25.10 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
25.11 We may revise these Terms of Service and any charges applicable to the Services, at any time by updating this posting or (in the case of increases to the charges) notifying you by means of the Settings Screen. Please check https://churn360.com/terms-of-service/ from time to time to review the then current Terms of Service. Kovai Limited will notify Customer of any changes as they occur, and they will be binding on Customer as from the start of the Subscription Term following the date of the change.